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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


or 


...  A.  Hawkins,  Jr. 


E  A.  HAWKINS.  JR 

-r    A 
tanU    Noisry    PcJlj 
GALVESTON.     TEX 


T1IK 


RULES  OF  PRACTICE 


IN   THE 


CIVIL  COURTS  OF  RECORD 


OF   THE 


STATE  OF  TEXAS 


BY 

JOHN  SAYLES 

COUNSELLOR  AT  LAW 


THIRD  EDITION 


VOL.  I 


ST.  LOUIS.  MO. 

THE  GILBERT  BOoK  COMPANY 
L896 


\ 


Entered  according  to  act  of  Congress,  in  the  year  189C,  by 

THE  GILBERT  BOOK  COMPANY, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


(d 

82  *>  3 
V.I 


PREFACE. 


Since  the  publication  of  the  former  editions  of  this  work,  the 

'lizatiou   uiul  jurisdiction  of  the  appellate  courts  have  been 

cha Hired,  with  a  view  to  facilitate  the  dispatch  of  business,  which 

has  increased  in  proportion  with  the  wealth  and  population  of  the 

state. 

Changes  in  the  rules  of  practice  have  been  made  to  some  extent 

Mtutory  provisions  and  by  the  rules  of  the  Supreme  Court. 

The  application  of  these  rules  to  varying  facts  is  illustrated  in  a 

number  of  the  decisions  of  the  Supreme  Court  and  of  the 

Courts  of  Civil  Appeals. 

The  purpose  of  the  author  has  been  to  arrange  the  rules  of 
court,  the  statutory  provisions  relating  to  the  mode  of  procedure 
in  courts  of  record  of  this  state,  and  to  show  the  application  cf 
'these  rules  t<>  varying  combinations  of  facts  in  decided  cases. 

The  work  is  based  on  the  Constitution  as  amended  in  1891,  the 
Revised  Statutes  of  1S95,  the  Rules  of  Procedure  as  amended  and 
promulgated  by  the  Supreme  Court  in  1892,  and  since  that  date, 
and  the  decisions  of  the  appellate  courts,  including  volume  87  of 
the  Supreme  Court  Reports,  volume  8  of  the  Civil  Appeals  Reports, 
ami  volume  31  of  the  Southwestern  Reporter;  also  Unreported 

'\s  and  the  Decisions  of  the  Court  of  Appeals  in  Civil  Cases. 

The  original  intention  was  simply  to  revise  the  last  edition  of 
th.-  author's  work  on  Practice,  but  it  soon  became  evident  that,  in 
order  that  the  work  might  be  a  safe  and  reliable  guide,  it  would  be 
necessary  to  rewrite  a  large  part  of  it,  and  that  a  work  of  one  vol- 
ume would  not  be  a  satisfactory  presentation  of  the  subject.  The 
Revised  Statutes  have  l>een  adopted  since  the  last  revision,  many 
and  important  changes  and  additions  have  been  made,  the  courts 
have  been  reorganized,  amended  rules  have  been  adopted,  and  there 
is  MO\\  a  reasonable  expectation  that  not  man}'  changes  in  the  law 


8  PREFACE. 

\vill  !>*•  made  in  the  near  future,  and  that  the  work  will  remain  for 
time  as  a  standard  authority  on  Practice  in  Courts  of  Record, 
author  and  publisher  are  confident  that  the  profession  would 

rather  pay  a  fair  price  for  a  complete  work  than  a  mere  nominal 

j »rice  for  one  that  would  be  only  a  partial  guide. 

JOHN  SAYLES. 
ABILENE,  TEXAS, 
May,  18Q6L 


PKKFACK  To  Till-    FIRST  EDITION. 


The  substance  of  the  following  work  was  delivered,  in  the  f< 
of  lecture*,  to  the  law  class  of  Baylor  I'niversity,  in  the  summer  "i 
The  lectures  were  favorably  received  by  the  class,  and  such 
friends  as  have  since  seen  them;  and  their  solicitations,  added  to  a 
e  to  be  useful,  and  in  some  measure  to  lighten  the  labors  of 
th»>  I'.ench  and  the  Bar,  have  induced  me  to  prepare  the  work  in 
its  present  form. 

The  need  of  such  a  work  has  long  been  felt  by  the  legal  profes- 
sion in  Texas.  Our  legislature,  our  system  of  procedure,  the  very 
organization  and  functions  of  our  courts,  are  all  peculiar.  Treat- 
ises on  the  practice  of  the  English  courts,  and  of  our  sister  states 
are,  therefore,  comparatively  useless  here.  In  the  course  of  my 
practice  at  the  bar,  this  fact  grew  daily  more  apparent:  and  I  be- 
came convinced  that  such  a  work  as  that  now  offered  to  th  public- 
would,  if  properly  executed,  meet  with  encouragement  from  the 
profession,  and  supply  a  want  much  felt  by  the  student. 

In  this  compilation  I  have  not  aimed  at  originality;  the  sub- 
\  as  one  which  neither  required  nor  permitted  it.  As  a  gen- 
eral rule,  I  have  abstained  from  original  disquisitions,  and  confined 
inv-elf  to  an  enunciation  of  established  principles,  without  he>itat- 
ir.ir.  however,  to  discuss  the  soundness  of  any  which  seemed  to  be 
questionable. 

My  endeavor  has  been  to  produce  a  work  of  authority,  founded 
upon  the  «leci>ions  of  the  courts,  which  might  show  what  our  pres- 
ent system  of  practice  is,  and  serve  as  a  basis  for  further  system- 
i/.ing  it.  In  this  I  hope  I  have  succeeded:  I  had  no  higher  aim. 

.l"ii.\   SAY: 
BKK.MI AM.  Auirnst.  1850. 


PREFACE  TO  THE  SECOND  EDITION. 


The  many  changes  in  our  statutes  in  relation  to  the  practice  in 
tlu-  District  and  Supreme  courts  since  the  first  publication  of  this 
work,  in  K»S,  and  the  numerous  decisions  embraced  in  seventeen 
volumes  of  the  State  Reports,  have  rendered  necessary  the  addition 
of  a  large  amount  of  new  matter  to  the  present  edition. 

A  full  synopsis  of  the  decisions  of  our  Supreme  Court  has  been 
•^iven,  when  necessary  to  explain  or  illustrate  the  text;  and  it  is 
hoped  that  by  this  means  any  errors  in  the  text  will  be  readily 
detected  and  corrected. 

I  am  indebted  to  B.  H.  Bassett,  Esq.,  for  the  chapter  on  Execu- 
tion, with  the  very  full  notes  exhaustive  of  the  decisions  of  the 
Supreme  Court  upon  that  important  subject 

JOHN  SAYLES. 
BREXHJUI,  July  1,  1873. 


TABLE  OF  CONTENTS. 


CHAPTER  L 

Sections. 
INTRODUCTION  ...................         1-33 

CHAPTER  IL 
OF  COURTS  AND  JUDGES     ...............       34-64 

CHAPTER  IIL 

JURISDICTION    ...................        65-78 

CHAPTER  IV. 

JURISDICTION  AND  POWERS  OP  THE  SUPREME  COURT  AND  COURTS  OF 

CIVIL  APPEALS   .................      79-103 

CHAPTER  V. 

ORIGINAL,  APPELLATE  AND  SUPERVISORY  JURISDICTION  OP  THE  DIS- 

TRICT AND  COUNTY  COURTS  .............    103-120 

CHAPTER  VL 
JURORS  —  How  SELECTED  AND  SUMMONED      .........    121-138 

CHAPTER  VIL 
PARTIES  TO  ACTIONS      ................    139-196 

CHAPTER  VIIL 
OBJECTIONS  FOR  DEFECT  OF  PARTIES    ...........    197-201 

CHAPTER  IX. 

INTERVENTION  OF  THIRD  PARTIES    .     .     ..........    •,>o2--,M<; 


CHAPTER  X. 

OF  THK  VKMK  OF  ACTIONS 


CHAPTER  XL 

Ti"N  AND  DOCKETING  OF  SUITS  ...........    253-262 

CHAPTER   XII. 
TATION  BY  PERSONAL  SERVICE     ...........    263-301 

CHAPTER  XIII. 

CITATION  BY  I't  I'.U--ATI<>N  ...  802-313 


U  TABLE   OF   CONTENTS. 

CHAPTER  XIV. 

Sections. 

1F.MKNT   AND   DISCONTINUANCE   OF  SUITS    ...  ...      314-339 

CHAPTER  XV. 

OBAHOI  ot  vi.\u:  .    .    .    .' 340-340 

CHAPTER  XVL 
:ITY  FOR  COSTS 347-355 

CHAPTER  XVII. 

UD.VTK'N  OF  SUITS  AND  JOINDER  OF  CAUSES  OF  ACTION   ,      .      .      350-367 

CHAPTER  XVIIL 
PERSONAL  ATTENDANCE  OF  WITNESSES 3C8-37G 

CHAPTER  XIX. 
DEPOSITIONS  OF  WITNESSES 377-391 

CHAPTER  XX. 
DEPOSITIONS  OF  PARTIES 393-397 

CHAPTER  XXL 
NOTICE  TO  PRODUCE  PAPERS 398-402 

CHAPTER  XXIL 
r.  .NTI.M-ANCE  OF  A  CAUSE 403-433 

CHAPTER  XXIIL 
OF  APPEARANCE  DAY  AND  JUDGMENT  BY  DEFAULT 431-141 

CHAPTER  XXIV. 
CALL  OF  CASES  — ISSUES  OF  LAW 442-450 

CHAPTER  XXV. 
TRIAL  BY  THE  COURT 451-453 

CHAPTER  XXVL 
OF  THE  RIGHT  OF  TRIAL  BY  JURY 454-463 

CHAPTER  XXVIL 
DRAWING  AND  IMPANELING  THE  JURY 464-172 

CHAPTER  XXVIIL 
'M-KNINO  THE  CASE 473-476 

CHAPTER  XXIX. 
COMPETENCY  OF  WITNESSES 477- i80 

CHAPTER  XXX. 
STATUTORY  RULES  OF  EVIDENCE 481-515 


j.viii.r   •  1.") 

CHAPTKR  XXXI. 

Section*. 

•"). 

CHAPTER  XXXII. 
;;RER  TO  EVIDENCE 531,532 

CHAPTER  XXXIII. 

I  IONS 5: 

CHAPTER  XXXIV. 
MENT  OF  COUNSEL 543-557 

CHAPTER  XXXV. 

(  HAIK.IM;  THE  JURY 558-583 

CHAPTER  XXXVL 
DELIBERATIONS  OF  THE  JURY  — RETURNING  THE  VERDICT     ....    584-601 

CHAPTER  XXXVII. 
THK  YI.KMCT 603-612 

CHAPTER  XXXVIIL 
IT 613-616 

CHAPTER  XXXIX. 
JUDGMENTS 617-642 

CHAPTER  XL. 
;  SSION  OF  JUDGMENT 643-647 

CHAPTER  XLI. 
STATEMENT  OF  FACTS 648-654 

CHAPTER  XLIL 
NS  OF  PRACTICE 655-662 

CHAPTER  XLIIL 
TRIAL  AND  ARREST  or  JUDGMENT 663-685 

CHAPTER  XLIV. 

HII.L  FOR  A  NEW  TKIAI 686-689 

CHAPTER  XLV. 

RKMITTITUR  AND  AMENDMENT  OF  JUDGMENT 690-696 

ril.u-TKK  XLVL 
r  PAHTIRS 697-700 

CHAITER  XI. VII. 
OK  TKIAI.  HY  AN  At  PI.  701-706 


16  TABLE   OF   CONTENTS. 

CHAPTER  XLVIIL 

Sections. 

OF  NOTICIS  AND  MOTIONS 707-712 

CHAPTER  XLIX. 
COSTS  OF  SUIT 713-736 

CHAPTER  L. 
COSTS  IN  THE  APPELLATE  COURTS 737-745 

CHAPTER  LI. 
ARBITRATION  UNDER  THE  STATUTE 746-756 

CHAPTER  LIL 
ARBITRATION  AT  COMMON  LAW 757-760 

CHAPTER  LIII. 
SL-BSTITUTION  OF  LOST  RECORDS  AND  PAPERS 761-765 

CHAPTER  LIV. 
(  "Mia'TATioN  OF  TIME 766-772 

CHAPTER  LV. 
AFFIDAVITS.  OATHS  AND  AFFIRMATIONS  773-775 


TEXAS  CIVIL  PRACTICE. 


CHAPTER  I. 


INTRODUCTION. 


g  1.  The  couris. 
-.  Justices  of  the  peace. 

3.  Jurisdiction  of  the  county  court. 

4.  The  district  court. 

<  'ourts  of  civil  appeals. 

6.  The  supreme  court. 

7.  Judges;  proceedings  when  disqual- 

ified. 

8.  Practice  in  civil  cases. 

9.  The  venue. 

10.  The  parties;  intervention  of  third 

parties. 

11.  Institution  of  suits;  security  for 

costs. 

12.  The  citation,  or  notice  to  the  de- 

fendant. 

ppearance;  default. 
14  Abatement  and  discontinuance. 
1"».  Change  of  venue. 
16.  Postponement  and  continuance  of 

cause. 


17.  Preparation  for  trial;  taking  dep- 

ositions and  procuring  the  at- 
tendance of  witnesses. 

18.  Call  for  trial 

19.  The  jury. 

20.  Opening  the  case. 

21.  The  evidence. 

22.  Examination  of  witnesses. 

23.  Argument  of  counsel 

24.  Charging  the  jury. 
•J."i.  Nonsuit. 

26.  Deliberations  of  the  jury;  return- 

ing the  verdict. 

27.  New  trial  and  arrest  of  judgment. 

28.  Appeals  and  writs  of  error. 

29.  Trial  in  courts  of  civil  appeals. 

30.  Error  to  a  court  of  civil  appeals. 

31.  Judgment  liens. 

32.  Execution. 

33.  How  to  conduct  a  lawsuit 


l .  The  courts. 

The  judicial  power  of  this  state,  in  civil  cases,  is  vested  in  one 

supreme  court,  in  courts  of  civil  appeals,  in  district  courts,  in  county 

courts,  in  courts  of  justices  of  the  peace,  and  in  such  other  courts 

as  may  1..-   provided  by  law.     The  existence  and  organization  of 

court*  is  prescribed  by  the  organic  law,  and  in  this  respect 

a iv  iit-yond  the  control  of  the  legislature.     The  character  of 

their  jurisdiction,  whether  original  or  appellate,  is  also  prescribed, 

but  beyond  this  very  much  is  left  to  the  discretion  of  the  legixla- 

The   legislature   may  establish  such  other  courts  as  it  may 

(l.-.-m    nt-i •••— ary,  and    prescribe   the    jurisdiction  and   organization 

thereof,  and  may  conform  the  jurisdiction  of  the  district  and  other 

inferior  courts  thereto.1 

i  Const,  art.  V,  ?•  1.    See  chapters  II,  IV  and  V,  post. 


18  INTRODUCTION.  [§§  2,  3. 

§  2.  Justices  of  the  peace. 

The  practice  in  justices'  courts  is  not  considered  in  this  work. 
These  courts  have  original  jurisdiction  in  civil  matters  of  all  cases 
where  the  amount  in  controversy  is  $200  or  less,  exclusive  of  inter- 
est, of  which  exclusive  original  jurisdiction  is  not  given  to  the  dis- 
trict or  county  courts,  and  of  cases  of  forcible  entry  and  detainer. 
They  have  also  power  to  foreclose  mortgages  and  enforce  liens  on 
personal  property,  where  the  amount  in  controversy  is  within  their 
jurisdiction. 

Justices'  courts  have  no  jurisdiction  of  suits  in  behalf  of  the  state 
to  recover  penalties,  forfeitures  and  escheats,  of  suits  for  divorce,  of 
suits  to  recover  damages  for  slander  or  defamation  of  character,  of 
suits  for  the  trial  of  title  to  land,  or  of  suits  for  the  enforcement 
of  liens  on  land.  In  all  cases  within  their  jurisdiction,  they  may 
issue  writs  of  attachment,  sequestration  and  garnishment.1 

§  3.  Jurisdiction  of  the  county  court. 

The  county  courc  has  exclusive  original  jurisdiction  in  civil  cases 
when  the  matter  in  controversy  exceeds  in  value  $200  and  does  not 
exceed  $500,  exclusive  of  interest,  and  concurrent  jurisdiction  with 
the  district  court  when  the  matter  in  controversy  exceeds  $500  and 
does  not  exceed  $1,000,  exclusive  of  interest.2 

The  county  court  does  not  have  jurisdiction  of  any  suit  to  recover 
damages  for  slander  or  defamation  of  character,  nor  of  suits  for  the 
recovery  of  lands,  nor  of  suits  for  the  enforcement  of  liens  upon 
land,  nor  of  suits  in  behalf  of  the  state  for  escheats,  nor  of  suits  for 
divorce,  nor  of  suits  for  the  forfeiture  of  the  charters  of  incorpora- 
tions and  incorporated  companies,  nor  of  suits  for  the  trial  of  the 
right  to  property  levied  on  by  virtue  of  any  writ  of  execution,  se- 
questration or  attachment,  when  the  property  levied  upon  shall  be 
equal  to  or  exceed  in  value  $500. 

The  county  court  has  appellate  jurisdiction  in  civil  cases  over 
which  the  justices'  courts  have  original  jurisdiction,  when  the  judg- 
ment of  the  court  appealed  from  or  the  amount  in  controversy  shall 
exceed  $20,  exclusive  of  costs.  It  also  has  power  to  hear  and  deter- 
mine cases  brought  up  from  the  justices'  courts  by  certiorari,  under 
the  provisions  of  the  title  relating  thereto. 

Subject  to  these  limitations,  the  county  court  is  authorized  to 

1  Const,  art.  V,  §  19;  R.  S.  1568,  1571,  1573.    It  will  be  noticed  that  the  juris- 
diction conferred  on  justices'  courts  is  not  made  exclusive.    See  §  104,  post. 

2  Const,  art.  V,  §  16.    There  is  a  conflict  in  the  provisions  of  the  constitution 
on  the  concurrent  jurisdiction  of  the  two  courts.    Jurisdiction  is  given  to  the 
district  court  when  the  amount  in  controversy  is  valued  at  $500,  exclusive  of  in- 
terest, and  exclusive  jurisdiction  is  given  to  the  county  court  in  such  a  case. 
See  Const,  art  V,  §  8;  R  S.  1099, 1157.    See,  also,  chapter  V,  post,  and  especially 
§§108  and  113. 


§  4.]  RODUCTI'  19 

hear  and  determine  any  cause  which  is  or  may  be  cognizable  by 
courts,  either  of  law  or  equity,  and  to  grant  any  relief  which  could 
be  granted  by  said  courts,  or  either  of  them.1 

County  courts  may  issue  writs,2  hear  and  determine  motions 
against  sheriffs  and  other  officers,1  and  may  punish  for  contempt.* 

The  legislature  has  power,  either  by  local  or  general  law,  to  di- 
minish or  change  the  jurisdiction  of  county  courts;  but  when  any 
such  change  is  made,  the  jurisdiction  of  the  other  courts  must  be 
made  to  conform  thereto.4 

The  county  court  is  a  court  of  record.  There  is  a  court  in  each 
county,  which  must  hold  at  least  four  terms  a  year.' 

; .  The  district  court. 

district  court  has  original  jurisdiction  in  civil  cases: 
1.  Of  all  suits  in  behalf  of  the  state  to  recover  penalties,  forfeit- 
ures and  escheats. 
•2.  Of  all  cases  of  divorce. 

3.  Of  all  suits  to  recover  damages  for  slander  or  defamation  of 
character. 

4.  Of  all  suits  for  the  trial  of  title  to  land  and  for  the  enforce- 
ment of  liens  thereon. 

5.  Of  all  suits  for  trial  of  right  to  property  levied  on  by  virtue  of 
any  writ  of  execution,  sequestration  or  attachment,  when  the  prop- 
levied  on  shall  be  equal  to  or  exceed  in  value  $500;  and 

6.  Of  all  suits,  complaints  or  pleas  whatever,  without  regard  to 
any  distinction  between  law  and  equity,  when  the  matter  in  con- 
troversy shall  be  valued  at  or  amount  to  $500,  exclusive  of  interest.7 

7.  Of  contested  elections.8 

The  district  court  also  has  appellate  jurisdiction  and  general  con- 
trol in  probate  matters  over  the  county  court  established  in  each 
county  for  appointing  guardians,  granting  letters  testamentary  and 
of  administration,  probating  wills,  for  settling  the  accounts  of  ex- 
ecutors, administrators  and  guardians,  and  for  the  transaction  of 
business  appertaining  to  estates.  It  has  appellate  jurisdiction  and 
al  supervisory  control  over  the  county  commissioners'  court, 
with  such  exceptions  and  under  such  regulations  as  may  be  pre- 
scribed by  law;  and  has  general  original  jurisdiction  over  all  causes 
of  action  whatever  for  which  a  remedy  or  jurisdiction  is  not  pro- 

'R.  S.  Ho?.  1159,1162. 

'Const,  art.  V,  S  16;  R  S.  116& 

»  R  S.  1 160.    See  §  116,  post. 

«R  s.  iir.i:  ^  60  and  61,jxwf. 

•Const ,  art.  V.  ?  ,>j;  K!  win  v.  Blanks,  60  T.  583. 

•Const,  art.  V.  §  15;  R  &  1167. 

7  See  the  note  to  §  3,  supra. 

•  Const,  art  V,  §  8;  R.  S.  1098. 


20  INTRODUCTION.  [§  5. 

vided  by  law  or  the  constitution,  and  such  other  jurisdiction,  orig- 
inal and  appellate,  as  may  be  provided  by  law.1 

Subject  to  the  limitations  !above  stated,  the  district  court  is  au- 
thorized to  hear  and  determine  any  cause  which  is  or  may  be  cog- 
nizable by  courts,  either  of  law  or  equity,  and  to  grant  any  relief 
which  could  be  granted  by  said  courts,  or  either  of  them.2 

The  district  court  may  hear  and  determine  motions  against  sher- 
iffs and  other  officers  and  attorneys,3  may  issue  writs,4  and  may 

-  punish  any  person  guilty  of  a  contempt.5 

t  The  legislature  has  full  power  to  divide  the.  state  into  judicial 
districts.  A  district  court  must  be  held  in  each  county  in  the  state. 
at  the  county  seat,  at  least  twice  a  year,  but  beyond  this  the  regu- 
lar and  special  terms  of  the  court  are  left  to  the  legislature.6 

§  5.  Courts  of  civil  appeals. 

The  state  is  now  divided  into  five  supreme  judicial  districts,  in  each 
of  which  is  established  a  court  of  civil  appeals.  Under  the  constitu- 
tion the  appellate  jurisdiction  of  each  court  is  co-extensive  with  the 
limits  of  its  district,  and  extends  to  all  civil  cases  of  which  the 
county  court  or  district  court  has  original  or  appellate  jurisdiction, 
under  such  restrictions  and  regulations  as  may  be  prescribed  by 
law.  These  courts  may  have  such  other  jurisdiction,  original  and 
appellate,  as  may  be  prescribed  by  law.7 

By  statute  the  appellate  jurisdiction  of  the  courts  of  civil  appeals 
extends  to  civil  cases  within  the  limits  of  their  respective  districts: 

1.  Of  which  the  district  court  has  original  or  appellate  jurisdic- 
tion. 

2.  Of  which  the  county  court  has  original  jurisdiction. 

3.  Of  which  the  county  court  has  appellate  jurisdiction  when  the 
judgment  or  amount  in  controversy  shall  exceed  $100,  exclusive  of 
interest  and  costs.     The  judgment  of  the  courts  of  civil  appeals  is 
conclusive  in  all  cases  upon  the  facts  of  the  case,  and  a  judgment 
of  such  courts  is  conclusive  on  facts  and  law  in  the  following  cases, 
nor  shall  a  writ  of  error  be  allowed  thereto  from  the  supreme  court, 
to  wit: 

1.  Any  civil  case  appealed  from  a  county  court  or  from  a  district 
court  when  under  the  constitution  a  county  court  would  have  had 
original  or  appellate  jurisdiction  to  try  it,  except  in  probate  mat- 
ters and  in  cases  involving  the  revenue  laws  of  the  state  or  the 
validity  of  a  statute. 

1  Const,  art  V,  §  8;  R  S.  1C99. 

2  R.  a  1106. 
'RS.  1100. 

*  Const,  art  V,  §  8;  R  S.  1107;  §  U8,  post. 
s  R  S.  1101.    See  §g  60,  61,  post. 
•Const,  art  V,  §  7;  R  S.  1111-1119. 
7  Const,  art  V,  §  6;  R  S.  996. 


§  6.]  IN  :  21 

2.  All  boundary. 

3.  All  cases  of  slander  and  divorce. 

4-.  All  cases  of  c«.ntr>ted  elections  of  every  character  other  than 
-•ate  nthVes,  except  where  the  validity  of  a  statute  is  attacked 
by  the  decision. 

The  judgments  of  the  courts  of  civil  appeals  are  final  in  all  ap- 

froni  interlocutory  orders  appointing  receivers  or  trustees,  or 

such  other  interlocutory  appeals  as  may  be  allowed  bylaw,  and  the 

judgments  <»f  said  courts  are  final  in   all  other  cases  as  to  law  and 

-.  except  where  appellate  jurisdiction  is  given  to  the  supreme. 

rt  and  not  made  tinal  in  said  courts  of  civil  appeals.1 

All  cases  removed  from  a  trial  court  go  in  the  first  instance  to  a 

court  of  civil  appeals,  either  by  appeal  or  writ  of  error.     Xo  such 

case  can  reach  the  supreme  court  except  by  passing  through  a  court 

of  civil  appeals. 

A  court  of  civil  appeals  consists  of  a  chief  justice  and  two  asso- 

justices.2     The  concurrence  of  two  justices  is  necessary  to  the 

ion  of  a  case.1    The  courts,  and  the  judges  thereof,  may  issue 

writs  of  itui  ii'linnus,  and  all  other  writs  necessary  to  enforce  the 

liction  of  the  courts,  and  may  by  ;/^////A//////.v  compel  a  district 

judge  to  proceed  to  trial  and  judgment.4    They  also  have  power, 

by  affidavit  or  otherwise,  to  ascertain  such  matters  of  fact  as  may 

be  necessary  to  the  proper  exercise  of  their  jurisdiction,  and  may 

punish  any  person  for  a  contempt  of  court.5 

The  supreme  court. 

The  supreme  court  consists  of  a  chief  justice  and  two  associate 
justices,  any  two  of  whom  constitute  a  quorum.  The  concurrence 
of  two  judges  is  necessary  to  the  decision  of  a  case.6  Under  the 
constitution,  the  appellate  jurisdiction  of  the  supreme  court  is  co- 
extensive with  the  limits  of  the  state,  and  extends  to  questions  of 
t  rising  in  cases  of  which  the  courts  of  civil  appeals  have  appel- 
late jurisdiction,  under  such  restrictions  and  regulations  as  the  leg- 
islature may  prescribe:  and  it  is  further  provided  that,  until  other- 
wise provided  by  law,  its  appellate  jurisdiction  shall  extend  to 
•;«>ns  of  law  arising  in  cases  in  the  courts  of  civil  appeals  in 
which  the  judges  of  a  court  may  disagree,  or  where  the  several 
courts  of  civil  appeals  may  hold  differently  on  the  same  question  of 
law.  or  where  a  statute  of  the  state  is  held  void.7  J5y  virtue  of  the 


»  R  S.  996,  im    See  chapter  IV,  post. 

2  Const,  art.  V,  g  6;  R  S.  987. 

»  R.  S.  987. 

«  R  a  997,  1000. 

Id  S.  *M*\  .'if. 

•Const,  art.  V.  $52:  R  S.  93a 

7  Const,  art  V,  g  3.    See  chapter  IV,  pott. 


22  INTRODUCTION.  [§  6. 

statute  its  jurisdiction  extends  to  questions  of  law  arising  in  all  civil 
cases  of  which  the  courts  of  civil  appeals  have  appellate  but  not 
final  jurisdiction;  and  all  causes  are  carried  up  by  writs  of  error 
issuing  from  the  supreme  court  to  the  courts  of  civil  appeals  upon 
linal  judgment,  and  not  on  judgments  reversing  and  remanding 
causes,  except  in  the  following  cases,  to  wit : 

1.  Where  the  state  is  a  party,  or  where  the  railroad  commission- 
ers are  parties. 

2.  Cases  which  involve  the  construction  and  application  of  the 
constitution  of  the  United  States  or  of  the  state  of  Texas  or  of  an 
act  of  congress. 

3.  Cases  which  involve  the  validity  of  a  statute  of  the  state. 

4.  Cases  involving  the  title  to  a  state  office. 

5.  Cases  in  which  a  court  of  civil  appeals  overrules  its  own  de- 
cisions or  the  decision  of  another  court  of  civil  appeals  or  of  the 
supreme  court. 

6.  Cases  in  which  the  judges  of  any  court  of  civil  appeals  may 
disagree. 

7.  Cases  in  which  any  two  of  the  courts  of  civil  appeals  may 
hold  differently  on  the  same  question  of  law. « 

8.  When  the  judgment  of  the  courts  of  civil  appeals  reversing  a 
judgment  practically  settles  the  case,  and  this  fact  is  shown  in  the 
petition  for  writ  of  error.1 

When  a  party  intends  to  remove  the  cause  to  the  supreme  court 
by  writ  of  error,  he  must  make  an  application  for  a  rehearing  in 
the  court  of  civil  appeals,  and  if  such  application  is  overruled,  he 
may  present  his  petition  to  the  supreme  court.  '  The  petition  for 
the  writ  should  be  as  brief  as  possible,  and  need  only  contain  the 
requisites  prescribed  by  the  statute,  as  hereinafter  stated  in  the 
chapter  relating  to  writs  of  error.2 

The  supreme  court  has  power,  upon  affidavit  or  otherwise,  to  as- 
certain such  matters  of  fact  as  may  be  necessary  to  the  propel 
exercise  of  its  jurisdiction.3  It  may  issue  writs  of  mandamus  to 
compel  a  judge  of  the  district  court  to  proceed  to  trial  and  judg- 
ment,4 and  may  have  original  jurisdiction  to  issue  writs  of  qu« 
warranlo  and  mandamus  in  all  such  cases  as  may  be  specified  by 
law,  except  as  against  the  governor  of  the  state.5  The  supreme 
court  and  the  justices  thereof  have  power  to  issue  writs  of  habeat 
corpus,  as  may  be  prescribed  by  law,  and  to  issue  writs  of  man* 

1 R  S.  940,  941.  As  to  what  judgments  of  the  courts  of  civil  appeals  are  co» 
elusive  on  the  law  and  the  facts,  see  §  5,  supra. 

-  R  S.  1030;  Rule  1  of  Sup.  Ct.  Rules. 
»  Const,  art.  V,  §  3;  R  S.  945. 

«  R  S.  949. 

•  Const,  art  V,  §  3;  R  S.  946. 


.  8.]  IVIIMI>;  cii"X.  23 


procedend  /•<//•/.  and  such  other  writs  as  may  he  nec- 

<•— <ary  to  enforce  its  jurisdiction.1     It  may  also  punish  for  contempt.-' 

7.  Judges. 

A  judir«-  is  not  qualified  to  sit  in  a  case  in  which  he  is  interested, 

«•!•  where  either  of  the  parties  is  connected  with  him  by  affinity  or 

consanguinity  within  the  third  degree,  or  where  he  shall  have  been 

ins.-l  in  the  case.3     Provision  is  made  for  the  appointment  of 

••'•ial  judge  where  a  district  or  county  judge  is  disqualified,  or 
when  two  members  of  an  appellate  court  are  disqualified.4  The 
district  judges  may  exchange  districts  or  hold  courts  for  each  other, 
and  must  do  so  when  directed  by  law.5  The  statute  directs  the  pro- 
cedure win-re  a  district  or  county  judge  fails  to  appear  at  the  time 
for  holding  court.6 

?'  8.  Practice  in  civil  cases. 

The  practice  of  the  county,  district  and  appellate  courts  in  civil 
cases,  or  the  manner  of  commencing,  prosecuting  and  defending 
suits  therein,  is  the  subject  of  the  following  work.  A  general  view 
of  the  course  of  proceedings  in  a  lawsuit,  tracing  its  history  from  its 
commencement  to  its  termination,  step  by  step,  will,  perhaps,  give 
the  student  a  better  idea  of  the  practice  in  those  courts  than  he  can 
ve  from  an  examination  of  the  subject  in  detail. 

The  practice  is  governed  (1)  by  the  statutes,  (2)  by  rules  made  by 
the  supreme  court,  and  (3)  by  the  rules  and  principles  of  the  com- 
mon law.7  The  constitution  and  statutes  give  the  supreme  court 
power  to  make  rules  and  regulations  for  the  government  of  said 
court  and  the  other  courts  of  the  state,  "so  as  to  expedite  the  dis- 
patch of  business  therein,"  and  the  legislature  has  supplemented 
this  grant  of  authority  by  providing  that  the  rules  made  must  be 
consistent  with  the  laws  of  the  state.8  Pursuant  to  the  power 
granted,  the  supreme  court  has  made  rules  regulating  the  pleading 
and  practice  in  the  trial  courts,  and  the  mode  of  prosecuting  an  ap- 
peal or  writ  of  error. 

It  will  be  recollected  that  the  county  and  district  courts  have  ju- 
risdiction in  all  cases,  without  regard  to  any  distinction  bet\ 
law  and  equity;  the  mode  of  obtaining  relief,  in  cases  dependent 
for  their  adjudication  upon  legal  or  equitable  principles,  is  the  same; 

•Const..  ;irt.  V,  §  3;  R  S.  946. 

>  Const,  art.  V,  g  11:  R  S.  969,  1021,  1068,  1129. 

•Const,  art.  V.  g  11;  R  &  969,  1021,  1069,  1130,  1131.    See  chapter  II, post.  { 
•Const,  art.  V,  <  11;  R  S.  1108. 
fiR  S.  1119,  1169. 
R.  S.  :>•*.»'.'.  :«5& 
•Const,  art  V,  §  25;  R  S.  944,  947. 


24:  INTRODUCTION.  [§§  9,  10. 

and  what,  under  the  common  law,  were  t\vo  separate  jurisdictions, 
are  blended  into  one.  There  is  no  distinction  between  law  and 
equity,  so  far  as  they  affect  the  practice  of  the  court.  A  legal  and 
an  equitable  cause  of  action  may  be  united  in  the  same  suit;  an 
equitable  defense  can  be  interposed  to  a  legal  cause  of  action,  and  a 
Iciral  defense  to  an  equitable  cause  of  action;  or  the  defendant  may 
rolv  upon  both  a  legal  and  an  equitable  defense.  While  there  is  no 
difference  in  the  practice  in  legal  and  equitable  cases,  there  are  also 
no  forms  of  action  adapted  to  particular  remedies,  and  the  prac- 
titioner is  in  no  danger  of  hazarding  his  case  by  a  failure  to  pursue 
his  remedy  in  a  particular  way.  The  action  of  trespass  to  try  title 
is  governed  by  statutory  rules,  to  some  extent  borrowed  from  the 
common  law,  and  is  not  within  the  general  rule  above  stated.1 

§  9.  The  venue. 

After  it  is  determined  that  a  suit  is  necessary  and  proper,  an  im- 
portant inquiry  is  as  to  the  venue,  or  the  county  in  which  the  suit 
must  be  brought.  The  statute  is  very  full  and  specific  on  the  sub- 
ject, leaving  little  room  for  error.  The  rule  is,  subject  to  several 
carefully-stated  exceptions,  that  an  inhabitant  of  the  state  must  be 
sued  in  the  county  in  which  he  has  his  domicile ;  but  the  privilege 
may  be  waived.2 

§  10.  The  parties;  intervention  of  third  parties. 

The  statute  is  not  very  full  on  the  subject  of  parties,  and  resort 
in  most  cases  must  necessarily  be  had  to  the  decisions  of  the  courts.3 
An  infant  may  sue  by  next  friend,  and  a  guardian  ad  litem  will  be 
appointed  for  a  minor  defendant,  where  he  has  no  guardian  in  this 
state.4 

Any  third  person  claiming  an  interest  in  the  subject-matter  of  a 
suit  may  intervene  —  may  become  a  party  —  and  have  his  right  de- 
termined. It  must  be  borne  in  mind  that  the  interest  claimed  must 
be  in  the  subject-matter,  and  not  in  some  incidental  or  collateral 
matter.  If  the  suit  is  on  a  money  demand,  property  on  which  a 
writ  of  attachment  may  be  levied  is  not  the  subject-matter  of  the 
suit,  and  a  person  claiming  the  property  cannot  have  his  interest 
tried  by  intervention.  His  remedy  is  by  the  statutory  proceeding 
for  a  trial  of  the  right  of  property,  action  against  the  officer  for  dam- 
ages, or  against  the  purchaser  at  a  sale  of  the  property  to  recover 
the  property.  For  {he  protection  of  the  defendant  a  third  party 
may  be  required  to  interplead  and  show  his  interest  in  the  subject- 

i  R  S.  1191. 

2R  a  1194;   Peveler  v.  Peveler,  54  T.  53;   Masterson  v.  Cundiff,  58  T.  472; 
Walker  v.  Stroud,  6  S.  W.  Rep.  202.    See  chapter  X,  post. 
»  R  S.  1196-1211.    See  chapter  VII,  post. 
«R  S.  1210,  3498u-34980. 


§   11.]  INTRODUCTI' 

mutter,  if  any.     The  right  to  intervene  is  upon  leave  of  court  and 

no  tire  to  the  par 

§11.  Institution  of  suits;  security  for  costs. 

Kverv  suit  is  commenced  by  filing  the  petition.  The  petition 
must  l>e  -  tiled,"  that  is,  deposited  with  the  clerk  of  the  proper 
court,  whose  duty  it  is  to  indorse  on  it  the  day  on  which  it  was 
tiled,  together  with  its  proper  "file"  number.  Every  suit  is  num- 
hereil  consecutively,  in  the  order  in  which  it  is  filed;  and  the  file 
number  is  tin?  number  belonging  to  a  particular  suit,  and  should 
be  indorsed  upon  all  papers  tiled  in  that  suit.  The  clerk  must 
make  an  entry  in  a  docket  kept  for  that  purpose,  showing  the  num- 
ber of  the  .suit,  the  names  of  the  parties  and  their  attorneys,  the 
t  of  the  suit,  the  officer's  return,  and  all  other  proceedings  in 
the  siiit.  specifying  the  time  they  were  had.2  The  commencement 
of  suits  and  the  service  of  process  on  Sunday  or  on  a  legal  holiday 
are  prohibited,  except  in  case  of  injunction,  attachment  or  seques- 
tration.3 

Before  issuing  the  writ  of  citation,  the  clerk  may  require  of  the 
plaintiff  t  unless  he  is  suing  as  an  executor,  administrator  or  guard- 
ian i  security  for  costs;  which  is  an  undertaking  upon  the  part  of 
the  surety  to  pay  all  costs  that  maybe  adjudged  against  the  plaint- 
iff. If,  however,  the  plaintiff  makes  affidavit,  before  the  clerk,  that 
he  is  too  poor  to  pay  the  costs  of  court  and  is  unable  to  give  secu- 
rity therefor,  he  is  entitled  to  all  process  free  of  costs,  and  cannot 
be  required  to  give  security.  The  clerk  has  the  right  to  contest,. 
by  proof  or  otherwise,  the  inability  of  the  party  to  pay  costs  or  to 
give  security  for  the  same.  The  matter  is  tried  before  the  judge 
at  the  next  term  after  filing  the  contest.  The  plaintiff  may,  at  any 
time  before  judgment,  on  motion  of  the  defendant  or  any  officer  of 
the  court  interested  in  the  costs,  be  ruled  to  give  security:  and  if 
he  fail  to  comply  with  the  rule  on  or  before  the  first  day  of  the 
next  term  the  suit  will  be  dismissed.  An  intervener  may  be  re- 
quired to  give  security  for  costs;  also  a  defendant  who  seeks  a 
judgment  on  a  counter-claim  after  the  plaintiff  has  discontinued  his 
suit.  The  state  need  not  give  security,  and  no  further  security  is  re- 
quired  in  any  case  where  the  costs  are  secured  by  an  attachment  or 
other  bond.4  When  the  oath  of  inability  has  been  tiled,  the  clerk 
must  indorse  on  process,  "pauper  oath  tiled,"  and  the  officer  is  re- 
quired to  serve  such  process  the  same  as  other  process.5 


•  chapter  IX. 
»RS.  117T-117!».  144»:   Rules  70-89. 
»  R  S.  1  ISO.     As  to  holidays,  see  R  S.  2939. 
«RS.  14W-144G. 
*RS. 


26  .INTRODUCTION.  [§  12. 

§  12.  The  citation,  or  notice  to  the  defendant. 

Before  a  court  is  authorized  to  enter  a  judgment  against  a  per- 
son, it  must  have  jurisdiction  both  of  the  subject-matter  of  the  suit 
and  of  the  person.  Jurisdiction  over  the  subject-matter  is  given  by 
law  :  it  cannot  be  given  by  consent.1  Jurisdiction  of  the  person  is 
obtained  by  service  of  process,  acknowledgment  of  service,  or  by 
voluntary  appearance,  but  any  abuse  of  the  privilege  accorded  by 
the  statute  of  acceptance  of  service  and  waiver  of  process  is  care- 
fully guarded  against  by  statute.2 

When  the  petition  is  filed  the  clerk  must  issue  citation  forthwith. 
Its  style  is,  "  The  State  of  Texas;"  the  address  is  to  the  sheriff  or 
any  constable  of  the  county  in  which  the  petition  alleges  the  de- 
fendant to  reside  or  be;  its  command  is  to  summon  the  defendant 
to  appear  at  the  next  term  of  court,  stating  the  time  and  place  of 
holding  the  same,  to  answer  the  plaintiff's  petition.  The  writ  is 
returnable  on  the  first  day  of  the  next  succeeding  term.  It  must 
be  dated,  tested  and  signed  by  the  clerk,  with  the  seal  of  the  court. 
The  date  of  issuing  the  writ  must  be  noted  on  it. 

The  writ  is  placed  in  the  hands  of  the  proper  officer,  who  must 
indorse  on  it  the  day  and  hour  on  which  he  received  it.  He  must 
then  proceed  to  obey  its  commands,  by  using  all  necessary  diligence 
to  find  the  defendant  and  execute  it.  It  is  executed  by  delivering 
to  each  defendant  a  true  copy.  If  served  without  the  county  in 
which  the  suit  is  pending,  the  officer  must  deliver  to  each  defend- 
ant, in  person,  a  certified  copy  of  the  petition  accompanying  the 
citation.  The  writ  cannot  be  executed  on  Sunday  or  on  any  legal 
holiday,  but  it  may  be  executed  at  any  time  before  the  return  day. 
The  defendant  will  not,  however,  be  required  to  appear  at  the  re- 
turn term  unless  the  writ  has  been  served  at  least  ten  days  before 
the  return  day,  exclusive  of  the  days  of  service  and  return. 

The  officer,  whether  he  has  executed  the  writ  or  not,  must  return 
it  on  or  before  the  return  day.  The  return  of  the  writ  consists  not 
only  in  bringing  it  back  to  the  office  of  the  clerk  from  which  it 
issued,  but  also  in  showing,  by  the  indorsement  upon  it,  whether  or 
not  it  has  been  executed.  If  it  has  been  executed,  the  officer  must 
indorse  upon  or  attach  to  it  his  return,  stating  fully  the  time  and 
manner  of  service,  and  sign  it  officially.  If  the  defendant  has  not 
been  found,  or  if,  from  any  other  cause  serving  as  a  legal  excuse, 
the  writ  has  not  been  served,  the  return  must  show  the  fact.  If 
the  writ  is  directed  to  the  sheriff  of  a  county  other  than  that  in 
which  the  suit  is  pending,  he  may  return  it  by  mail;  and  he  has 
discharged  his  duty  in  that  respect  when  he  has  placed  it  in  the 
postoffice  properly  enveloped  and  addressed,  with  the  postage  paid.3 

i  See  §  38,  post;  Burnley  v.  Cook,  13  T.  586;  Campbell  v.  Wilson,  6  T.  379. 

2RS.  1240-1242,  1349. 

1  Underwood  v.  Russell,  4  T.  175. 


§,  13.]  1 N  TRODUCTK  >N.  'J.  ~ 

If  the  officer  does  not  return  the  writ,  if  he  simply  brings  it  hack 
without  tht-  proper  indorsement,  he  may,upon  motion, be  compelled 
to  mak.-  a  due  return.  He  may  also  be  lined  for  his  neglect  of 
duty,  and  is  liable  t<>  an  action  by  the  plaintiff  for  any  damage  he 
mav  have  sustained.  If  the  defendant  has  not  been  served, 
and  ylni-i-*  writs  may  be  issued  to  the  same  or  any  other  county, 
,e  plaintitl'  may  direct,  until  service  is  obtained. 

When,  from  the  nature  of  the  case,  personal  service  of  the  cita- 
tion cannot  be  made,  service  may  be  made  by  publication  in  the 
manner  prescribed  by  the  statute;1  but  this  method  of  service  will 
uthori/.e  a  personal  judgment  against  a  non-resident  who  does 
not  appear  in  the  case,  even  for  costs.2 

.  3.  Appearance;  default. 

Appearance  day  is  the  second  day  of  each  term,  in  both  the  dis- 
trict and  county  courts;  and  where  defendant  has  been  served  per- 
sonally, at  least  ten  days  before  the  first  day  of  the  term,  exclusive 
of  the  days  of  service  and  return,  he  must  file  his  answer  on  or  be- 
fore the  appearance  day,  and  before  the  call  of  the  appearance 
docket.3  "Where  service  has  been  made  by  publication,  the  an 
must  be  filed  on  or  before  appearance  day  of  the  term  next  succeed- 
ing that  to  which  the  action  is  returnable;  and  where  personal 
service  is  not  made  ten  days  before  the  first  day  of  the  return  term, 
the  defendant  is  not  required  to  plead  until  the  next  succeeding 
term.4 

Upon  appearance  day  the  cases  upon  the  appearance  docket  are 
called  by  the  judge  in  the  order  in  which  they  have  been  entered. 
If  a  defendant  has  failed  to  appear  and  answer,  a  final  judgment 
by  default  will  be  rendered  against  him,  and  a  short  entry  to  that 
effect  is  made  upon  the  judge's  docket. 

"When  there  are  several  defendants,  some  of  whom  have  an- 
swered and  others  have  made  default,  an  interlocutory  judgment 
by  d"fault  may  he  entered  against  those  who  have  not  answered, 
and  the  cause  may  proceed  against  the  others,  but  only  one  final 
judgment  shall  be  given  in  the  suit. 

If  the  cause  of  action  is  liquidated  and  proved  by  an  instrument 
in  writing,  the  damages  will  be  assessed  by  the  court  or  under  its 
direction,  and  judgment  final  be  rendered  therefor,  unless  the  de- 
fendant demand  and  is  entitled  to  a  trial  by  jury.  If  the  cause  of 

» R  S.  1212-124.-J.  1447.    See  the  chapter  on  CITATI<  >.v 

»  Pennoyer  v.  N,  if,  95  U.  a  728;  York  v.  State,  73  T.  651;  Kimmarle  v.  H.  &  T. 
G  Ry.  Co.,  76  T.  686;  St.  L.,  A.  &  T.  Ry.  Co.  v.  WhitU-y,  77  T.  126;  Taliaferro  v. 
Butler,  77  T.  578;  Hardy  v.  Beaty.  84  T.  562.  See  the  chapter  on  CITATION  BY 
PUBLICATION. 

»  R  &  1263-1280.    See  chapter  XXIII. 

<  R  S.  1229,  1264. 


28  INTRODUCTION.  [§  14. 

action  is  unliquidated  or  is  not  proved  by  an  instrument  in  writing, 
the  court  will  bear  evidence  as  to  the  damages  and  render  judgment 
therefor,  unless  the  defendant  demands  and  is  entitled  to  a  trial  by 
jury.1 

g  14.  Abatement  and  discontinuance. 

The  death  of  a  party  to  a  suit  before  verdict  will  not  cause  it  to 
abate  when  the  cause  of  action  survives;  but  upon  the  suggestion 
of  such  death  upon  the  record,  the  representative  of  the  deceased 
party  may  be  made  a  party  to  the  suit,  or  a  scire facias  may  issue, 
requiring  him  to  appear  and  prosecute  or  defend  the  suit,  as  the 
case  may  be.  If  a  suggestion  of  the  death  is  not  made  at  the  first 
term  succeeding  thereto,  the  clerk  will  issue  a  scire  facias  upon  the 
petition  of  a  party  to  the  suit.  If  an  executor,  administrator  or 
guardian  dies,  his  successor  can  in  the  same  manner  be  made  a 
party. 

If  the  plaintiff  is  suing  for  the  benefit  of  another  and  dies,  the 
suit  may  proceed  in  the  name  of  the  beneficiary.  If  a  female  party 
marries,  her  husband  may  be  made  a  party  upon  the  suggestion  of 
the  marriage. 

If  one  of  two  or  more  plaintiffs  or  defendants  dies,  and  the  cause 
of  action  survives  for  or  against  the  survivor,  the  suit  may  be  per- 
mitted to  abate  as  to  the  deceased  party,  or  his  representative  may 
be  made  a  party  thereto.  When  either  party  dies  between  the  ver- 
dict and  judgment,  the  judgment  will  be  entered  as  if  both  parties 
were  living. 

When  one  or  more  of  several  defendants  are  served  with  process 
and  others  are  not  served,  the  plaintiff  may  discontinue  as  to  those 
not  served  and  proceed  against  the  others,  or  he  may  continue  his 
suit  and  take  new  process.  When  suit  is  dismissed  as  to  a  principal 
obligor  no  judgment  can  be  rendered  therein  against  an  indorser, 
guarantor,  surety  or  drawer  of  an  accepted  bill  who  is  jointly  sued,, 
unless  it  is  alleged  and  proved  that  such  principal  obligor  resides 
beyond  the  limits  of  the  state  or  in  such  part  of  the  same  that  he 
cannot  be  reached  by  the  ordinary  process  of  law,  or  that  his  resi- 
dence is  unknown  and  cannot  be  ascertained  by  the  use  of  reason- 
able diligence,  or  that  he  is  dead,  or  actually  or  notoriously  insolvent. 

The  plaintiff  may  dismiss  the  suit  in  open  court,  or  take  a  nonsuit 
at  any  time  before  the  jury  have  retired  from  the  bar,  except  when, 
by  the  pleadings,  the  defendant  would  be  entitled  to  a  judgment 
against  the  plaintiff  other  than  for  costs.  He  may  dismiss  his  suit 
in  vacation,  when  the  defendant  has  not  answered,  upon  paying  to 
the  clerk  all  costs  that  have  accrued  therein.2 

1R  8.  1280-1287. 

*R.  S.  1246-1261.    See  chapter  XIV. 


§§  15,  10.]  nrpooi '  H»N.  29 

5.  Change  of  venue. 

The  venue  or  place  of  trial  of  a  case  may  be  changed,  either  by 
written  consent  of  the  parties  tiled  with  the  papers  of  the  cant 
on  the  application  of  either  party,  by  affidavit,  supported  by  the 
affidavit  <>f  at  least  three  credible  persons,  residents  of  the  county 
where  the  suit  is  pending.  The  affidavit  must  state  the  statntory 
grounds.  <•!•  "other  good  and  sufficient  cause."  The  credibility  of 
the  pei-sons  making  the  application,  their  means  of  knowledge,  or 
the  truth  of  the  farts  stated,  may  be  attacked  by  the  affidavit  ef  a 
credible  prison,  and  the  issue  formed  will  be  tried  by  the  judge 
and  he  may  !_rrant  or  refuse  the  application  as  the  law  and  the  tacts 
may  warrant.  The  case  will  be  sent  to  an  adjoining  county,  the 
court-house  of  which  is  nearest  to  the  court-house  of  the  county  in 
which  the  suit  is  pending,  unless  there  are  objections  sufficient  to 
remove  the  case  from  that  county  if  it  were  pending  there.1 

g  16.  Postponement  and  continuance  of  cause. 

Each  case,  when  reached  upon  the  regular  call  of  the  docket, must 
be  dispoM-.l  of  in  some  way.  It  may,  by  consent  of  parties  and  of 
the  court,  be  passed  to  the  "heel  of  the  docket,"  and  in  that  event 
it  will  not  again  be  taken  up  until  all  of  the  cases  upon  the  docket 
are  disposed  of;  or  the  parties  may,  by  consent  of  the  court,  set  it 
for  trial  on  a  particular  day  of  the  term,  and  it  will  then,  upon  the 
day  set,  have  precedence  over  all  other  cases.  The  issues  of  la\v 
having  been  decided,  and  the  additional  pleadings,  if  any,  rendered 
necessary  thereby,  having  been  filed  within  the  time  allowed  by  the 
court,  the  parties  must  respectively  announce  whether  they  are 
ready  for  trial.  If  either  party  wishes  for  a  postponement  of  the 
trial,  he  must  move  for  a  continuance.  The  motion  must  be  sup- 
ported by  affidavit;  if  it  is  the  first  application  for  a  continuance, 
and  for  the  want  of  testimony,  the  affidavit  must  state  that  such 
testimony  is  material,  and  that  due  diligence  (stating  the  facts  as  to 
diligence)  has  been  used  to  procure  it;  if  the  application  is  upon  any 
other  ground,  the  affidavit  must  state  the  facts.  On  a  second  or 
subsequent  application  for  want  of  testimony,  the  affidavit  mu>t 
state  and  show  that  the  testimony  is  material  and  that  the  party 
has  n>et I  due  diligence  to  procure  it  —  stating  BOOB  diligence  and 
the  cause  of  failure,  if  known  —  and  that  the  testimony  cannot  be 
obtained  from  any  other  source;  if  it  be  for  the  absence  of  a  wit- 
it  must  state  the  name  and  residence  of  the  witness,  and  what 
••xprctt-d  to  prove  by  him,  and  that  the  continuance  is  not  a 
for  delay  only,  but  that  justice  may  be  done. 

Applications  for  a  continuance  may  be  made  upon  other  grounds, 
and  are  addressed  to  the  sound  discretion  of  the  court,  as  are  appli- 

i  R  S.  1270-1275.    See  chapter  XV. 


30  INTRODUCTION.  [§  17. 

cations  for  a  third  or  a  subsequent  continuance.  The  adverse  party 
may  admit  the  facts  stated  in  the  application  for  a  second  or  sub- 
sequent continuance  for  the  want  of  testimony,  and  the  application 
Will  be  refused.  The  motion  upon  the  first  application  is  decided 
summarily  and  without  argument;  upon  the  second  application 
argument  will  be  heard.  If  the  motion  is  granted,  the  cause  is 
disposed  of  for  the  term ;  if  it  is  overruled,  the  decision  of  the  court 
may  be  reserved  for  revision  by  a  bill  of  exceptions.  A  case  is  con- 
tinued by  operation  of  law :  (1)  Where  the  death  or  marriage  of  a 
party  is  suggested  upon  the  record,  and  application  is  made  for  a 
8ci.fa.'}  (2)  where  the  cause  is  not  reached  for  want  of  time.1 

§17.  Preparation  for  trial;  taking  depositions  and  procuring  the 
attendance  of  witnesses. 

The  plaintiff  immediately  upon  instituting  suit,  and  the  defend- 
ant as  soon  as  he  is  served  with  process,  should  commence  to  pre* 
pare  for  trial.  This  preparation  consists  in  procuring  such  evi- 
dence as  he  may  think  necessary  to  sustain  his  case.  The  evidence 
consists  in  the  testimony  of  witnesses  or  in  written  documents. 
Depositions  may  be  taken  in  all  civil  suits  whether  the  witness  re- 
sides in  the  county  where  the  suit  is  brought  or  out  of  it ;  but  the 
failure  to  take  the  deposition  of  a  male  witness  residing  in  the 
county  is  not  a  want  of  diligence,  if  the  proper  steps  have  been 
taken  to  secure  his  attendance. 

The  party  wishing  to  take  the  deposition  must  file  interrogatories 
to  the  witness  with  the  clerk  of  the  court  in  which  suit  is  pending,. 
Avith  a  notice  that  he  will  apply  for  a  commission  to  take  the  an- 
swers of  such  witness.  The  opposite  party,  his  agent  or  attorney, 
must  be  served  with  a  copy  of  the  interrogatories  and  notice,  and 
may  file  cross-interrogatories  to  the  Avitness.  After  due  service  of 
the  notice,  a  commission  may  be  sued  out,  directed  to  the  proper 
officer,  and  requiring  him  to  cause  the  Avitness  to  appear  before 
him,  and  answer  under  oath  the  direct  and  cross-interrogatories  an- 
nexed to  the  commission.  The  ansAvers  of  the  Avitness  must  be  re- 
duced to  Avriting,  be  sworn  to  and  subscribed  by  him,  and  certified 
to  by  the  officer,  under  his  hand  and  seal. 

The  commission,  interrogatories  and  answers  must  be  sealed  up 
in  an  envelope,  Avith  the  name  of  the  officer  written  across  the  seal ; 
and  the  names  of  the  parties  to  the  suit  and  the  Avitnesses  indorsed 
on  the  envelope.  The  package  must  be  directed  to  the  clerk  of  the 
court  from  Avhich  the  commission  issued,  and  may  be  returned  by 
mail  or  by  private  hand.  If  returned  by  mail,  the  postmaster  must 
indorse  on  the  package  that  he  received  it  from  the  officer  before 
whom  the  ansAvers  were  taken ;  and  the  clerk  of  the  court  must  in- 

i  R.  S.  1276-1279, 1288.    See  CONTINUANCE,  post. 


§   17.]  INTRQDCCTl'  31 

dorse  thereon  that  he  received  it  from  the  postoffice.  If  returned 
in  any  other  way,  the  person  delivering  them  into  court  must  make 
affidavit,  before  the  clerk,  that  he  received  them  from,  the  hands  of 
the  officer  l»e  fore  whom  they  were  taken,  that  they  have  not  been 
out  of  his  possession  since,  and  that  they  have  undergone  no  alter- 
ation. The  deposition  should  be  tiled,  and  may  be  read,  subject  to 
all  legal  exceptions. 

AN' hen  a  deposition  has  been  filed  in  the  court  at  least  one  entire 
day  before  the  day  on  which  the  case  is  called  for  trial,  no  objec- 
tion to  the  form  thereof,  or  to  the  manner  of  taking  the  same,  will 
be  heard  unless  stated  in  writing  and  notice  thereof  given  to  the 
opposite  counsel  before  the  trial  commences.  The  objection  must 
be  made  and  determined  at  the  first  term  after  the  deposition  is 
filed ; l  and  either  party  may  require  it  to  be  placed  on  the  motion 
d«  >cket  and  tried  as  other  motions.  If  not  tried  sooner,  it  must  be 
tried  before  either  party  is  required  to  announce  ready  for  trial.'-' 
A  deposition  may  be  read  where  the  witness  is  present  at  the  trial.* 

The  deposition  of  a  party  to  the  suit  may  be  taken,  either  on  his 
own  behalf  or  by  the  opposite  party.  When  taken  by  the  opposite 
party,  notice  of  the  filing  of  interrogatories  is  not  required ;  and  an 
interrogatory  which  the  party  refuses  to  answer,  or  answers  evasively, 
is  taken  as  confessed.4 

The  clerk,  at  the  request  of  either  party,  is  required  to  issue  sub- 
poenas for  witnesses  who  reside  or  are  to  be  found  within  the  county 
at  the  time  of  the  trial.  The  subpoena  is  served  by  being  read  to 
the  witness,  or  he  may  accept  service  by  a  written  memorandum 
signed  by  him  and  attached  to  the  subpoena.  When  a  witness  ha-; 
been  duly  summoned,  he  must  attend  from  day  to  day  and  from 
term  to  term,  until  discharged  by  the  court  or  the  party  summon- 
ing him.  A  witness  will  not  be  fined  for  non-attendance,  nor  will 
an  attachment  issue  to  compel  his  attendance,  until  it  be  shown,  by 
the  affidavit  «>f  the  party,  his  agent  or  attorney,  that  his  lawful  fees 
have  been  paid  or  tendered; 5  but  whether  a  pay  mentor  tender  must 
•  >\vn  in  order  to  show  diligence  on  an  application  for  a  continu- 
•  is  left  uncertain  by  the  cases.6 

'  R.  S.  2273-229L 

'Schmk-k  v.  Noel,  64  T.  406,   72  T.  1;  O'Connor  v.  Andrews.  $1  T.  •>;  Hittson 
it  Bank,  14  S.  W.  Rep.  780;  Dillingham  v.  Hod;:  W.  Rep.  86. 

« R.  .  .-us. 

»R.  ..'68. 

•Tex.  Transp.  Co.  v.  Hyatt,  54  T.  213;  H.  &  T.  C.  Ry.  Co.  v.  \Vln-..1.-r.  1  App. 
C.  G,  §  170;  Blum  67  T.  194;  Dillinghara  v.  Kills.  -.,;  7  ,}?:  TV\.  A: 

Pac.  Ry.  Co.  v.  Hall,  83  T.  675;  Doll  v.  Mundine,  26  S.  W.  Rep.  87;  Bryce  v.  Jom-s. 
38  T.  205. 


32  INTRODUCTION.  [§  18. 

«t  18.  Call  for  trial. 

( 'ascs  are  called  for  trial  in  the  order  in  which  they  stand  on  the 
docket  to  which  they  belong,  unless  otherwise  ordered  by  the  court. 
Those  on  the  jury  docket  have  the  preference ;  those  on  the  docket 
of  rases  in  which  a  jury  has  not  been  demanded  are  taken  up  and 
tried  at  such  times  and  in  such  manner  as  not  unnecessarily  to  inter- 
fere with  the  dispatch  of  business  on  the  jury  docket.  By  an  order 
entered  on  the  minutes  the  court  designates  the  day  of  the  term  for 
t  iking  up  the  jury  docket  at  all  subsequent  terms,  until  changed  by 
a  like  order.1 

When  a  case  is  called  for  trial,  the  issues  of  law  arising  on  the 
pleadings,  and  all  pleas  in  abatement,  and  other  dilatory  pleas  re- 
maining undisposed  of,  must  be  determined,  and  it  is  not  a  sufficient 
cause  for  a  postponement  of  a  trial  of  the  issues  of  law  that  a  party 
is  not  ready  to  try  the  issues  of  fact.2  The  rules  of  the  district  and 
county  courts  provide  as  follows : 

"  All  dilatory  pleas,  and  all  motions  and  exceptions  relating  to  a 
suit  pending,  which  do  not  go  to  the  merits  of  the  case,  shall  be 
tried  at  the  first  term  to  which  the  attention  of  the  court  shall  be 
called  to  the  same,  unless  passed  by  agreement  of  parties  with  the 
consent  of  the  court ;  and  all  such  pleas  and  motions  shall  be  first 
called  and  disposed  of  before  the  main  issue  on  the  merits  is  tried, 

"  All  motions  which  go  to  the  merits  of  the  case,  and  all  excep- 
tions, general  and  special,  which  relate  to  the  substance  or  to  tho 
form  of  the  pleadings,  shall  be  decided  at  the  first  term  of  the  court 
when  the  case  is  called  in  the  regular  order  for  trial  on  the  docket, 
if  reached,  whether  there  be  an  announcement  on  the  facts  or  not, 
unless  passed  by  an  agreement  of  parties  with  the  consent  of  the 
court. 

"  When  the  case  is  called  for  trial,  the  exceptions,  if  any  remain 
undisposed  of,  shall  be  presented  for  determination,  and  shall  then 
be  decided  before  proceeding  to  the  trial  of  the  case  on  the  facts, 
and,  if  not  presented,  they  shall  be  adjudged  by  the  court  to  have 
been  waived,  and  shall  be  so  entered  on  the  minutes  of  the  court, 
the  cost  of  filing  to  be  taxed  against  the  party  filing  them,  and 
they  shall  constitute  no  part  of  the  final  record,  unless  some  ques- 
tion be  raised  upon  the  action  of  the  court  in  reference  to  them, 
and  they  are  presented  in  a  bill  of  exceptions." 3 

The  case  may  be  tried  before  the  court  without  a  jury,  or  it  may 
be  submitted  to  the  court  on  an  agreed  statement  of  facts,  or  either 
party  may  demand  a  jury.  The  rules  for  jury  trials  govern  in 
trials  by  the  court,  so  far  as  applicable.4 

1  R  S.  1288-1290.    See  R  S.  3199;  also,  chapter  XXIV. 

2  R  S.  1291. 

8  Rules  24-26. 

«  R  S.  1292,  1293,  3187  et  seq. 


§§10,20.]  nrrBODCcm  33 

The  defendant,  if  he  does  not  intend  to  resist  the  suit,  may  ap- 
pear and  confess  judgment  :  or  if  he  has  pleaded,  may  withdraw 
liis  ans\v»-r,  and  let  judgment  go  by  •/<//  </>'<//.  The  appearance,  in 
these  i  -uses,  cures  all  errors  in  the  proceedings  that  have  previously 
occurred.1 

$19.  The  jury. 

Any  party  desiring  to  have  a  cause  tried  by  a  jury  must  make 
application  therefor  in  open  court  on  the  first  day  of  the  term  at 
which  the  suit  is  to  be  tried,  unless  the  same  be  an  appearance  case, 
in  which  event  the  application  must  be  made  on  default  day.  He 
must  at  the  same  time  deposit  with  the  clerk  a  jury  fee  of  $5  if  in 
the  district  court,  and  of  $3  if  in  the  county  court,  or  iile  with  the 
clerk  an  atlidavit  signed  by  him,  to  the  effect  that  he  is  unable  to 
make  such  deposit,  and  that  he  cannot,  by  the  pledge  of  property 
or  otherwise,  obtain  the  money  necessary  for  that  purpose.2 

liefore  a  jury  is  drawn,  either  party  may  challenge  the  array,  on 
the  Around  that  the  officer  summoning  the  jury  has  acted  corruptly. 
The  challenge  must  be  in  writing,  and  must  be  supported  by  the 
atlidavit  of  the  party  or  some  credible  person.  The  court  hears 
evidence,  and  decides  the  qnestion  without  delay.  If  the  challenge 
stained,  the  array  is  discharged,  and  others  are  summoned. 
iiallenge  is  allowed  where  the  jurors  are  selected  by  jury  com- 
missioners.3 The  competency  of  jurors,  the  mode  of  drawing  and 
impaneling  a  jury,  and  the  number  of  peremptory  challenges  to 
which  each  party  is  entitled,  are  fully  indicated  in  the  statute,  and 
in  the  appropriate  place  in  this  work.4 

The  jury  must  be  sworn  by  the  court,  or  under  its  direction.  A 
jury  in  the  district  court  consists  of  twelve  men,  but  the  parties 
may  agree  to  try  with  a  less  number.  If  during  the  trial  one  or 
more  jurors,  not  exceeding  three,  die  or  be  disabled  from  sitting, 
the  remainder  of  the  jury  may  render  a  verdict,  but  they  must 
each  siun  the  verdict.  ^No  verdict  can  be  rendered  in  any  case  ex- 
cept upon  the  concurrence  of  all  the  jurors  trying  the  case.  A 
jury  in  the  county  court  is  composed  of  six  men.5 

?•  20.  Opening  the  case. 

When  the  jury  is  impaneled  the  plaintiff  opens  by  reading  his 
petition  to  the  jury.  The  defendant  then  reads  his  answer,  and  if 
there  is  an  intervene!1  his  pleadings  are  then  read.  This  order  is 
observed,  unless  the  court,  for  good  cause  shown,  should  otherwise 


IRS. 

2  R  a  3187-3196.    See  chapters  XXVI  and  XXVII. 

»R.  E  ."ii5. 

<R  s.  :«»>-.?  am 

»R  S.  3226-0231;  Const,  art  V,  §  13. 
3 


34  INTRODUCTION.  [§  21. 

direct.  The  party  on  whom  rests  the  burden  of  proof  on  the  whole 
case  proceeds  to  state  briefly  to  the  jury  the  nature  of  his  claim  or 
defense,  and  introduces  his  evidence,  and  is  followed  by  the  adverse 
party  and  the  intervener  respectively.  The  parties  are  then  con- 
fined to  rebutting  testimony.  The  rule  reads  as  follows:  "The 
plaintiff  shall  have  the  right  to  open  and  conclude,  both  in  adduc- 
ing his  evidence  and  in  the  argument,  unless  the  burden  of  proof 
on  the  whole  case  under  the  pleadings  rests  upon  the  defendant,  or 
unless  the  defendant,  and  all  of  the  defendants,  if  there  should  be 
more  than  one,  shall,  after  the  issues  of  fact  are  settled  and  before 
the  trial  commences,  admit  that  the  plaintiff  has  a  good  cause  of 
action,  as  set  forth  in  the  petition,  except  so  far  as  it  may  be  de- 
feated, in  whole  or  in  part,  by  the  facts  of  the  answer  constituting 
a  good  defense,  which  may  be  established  on  the  trial;  which  ad- 
mission shall  be  entered  of  record,  when  the  defendant,  and  the 
defendants,  if  more  than  one,  shall  have  the  right  to  open  and  con- 
clude in  adducing  the  evidence  and  in  the  argument  of  the  cause." * 

§  21.  The  evidence. 

The  rules  and  principles  which  govern  in  the  introduction  of  evi- 
dence, and  which  relate  to  its  admissibility,  do  not  come  within  the 
scope  of  this  work,  except  certain  statutory  rules  on  documentary 
evidence  and  the  competency  of  witnesses,  which  are  considered 
under  the  appropriate  heads.  The  common  law  of  England,  as 
practiced  at  the  time  of  its  adoption  by  the  act  of  December  20, 
1836,  in  its  application  to  evidence,  is  followed  and  practiced  by  the 
courts  of  this  state,  so  far  as  it  is  not  inconsistent  with  the  laws  of 
the  state.2 

No  person  is  incompetent  as  a  witness  on  account  of  color,  nor 
because  he  is  a  party  to  or  interested  in  a  suit,  nor  on  account  of 
his  religious  opinions  or  for  want  of  religious  belief.  The  husband 
or  wife  of  one  who  is  a  party  to  or  interested  in  a  suit  may  testify, 
except  as  to  confidential  communications  between  husband  and 
wife.3  A  very  important  provision,  and  one  which  has  frequently 
come  before  the  courts  for  construction  and  application,  has  refer- 
ence to  the  competency  of  parties  in  suits  by  or  against  executors, 
administrators  and  guardians.  It  reads  as  follows:  "Inactions 
by  or  against  executors,  administrators  or  guardians,  in  which 
judgment  may  be  rendered  for  or  against  them  as  such,  neither 
party  shall  be  allowed  to  testify  against  the  others  as  to  any  trans- 
action with,  or  statement  by,  the  testator,  intestate  or  ward,  unless 
called  to  testify  thereto  by  the  opposite  party ;  and  the  provisions 

1 R  S.  1297;  Rule  31.  See  chapter  XXVIIL 
1 R  S.  2299.  See  chapters  XXIX  to  XXXL 
»R.  S.  2300,  2301,  2303;  Const.,  art.  I,  §  5. 


§§  22-24.]  INTRODUCTION.  35 

of  this  article  shall  extend  to  and  include  all  actions  by  or  against 
the  heirs  or  le^al  representatives  of  a  decedent  arising  out  of  any 
transaction  with  such  decedent."  l 

=;  22.  Examination  of  witnesses. 

Hither  party  may,  at  the  opening  of  the  case,  demand  that  the 
witnesses  be  put  under  "the  rule,"  that  is,  that  they  shall  be  kept 
together,  and  apart  from  all  other  persons,  by  an  officer,  so  that  no 
one  can  hear  the  testimony  of  another.2  If  the  rule  is  demanded, 
each  party  must  have  all  of  the  witnesses  he  intends  to  introduce 
sworn  at  once  and  placed  in  charge  of  the  officer.  The  witness  is 
first  examined  by  the  party  introducing  him,  cross-examined  by  the 
adverse  party,  and  re-examined  by  the  first  party.  And  here  the 
examination  will  generally  close;  but  the  court  may,  in  its  discre- 
tion, relax  the  rule  when  justice  seems  to  demand  it,  and  allow 
either  of  the  parties  to  ask  omitted  or  explanatory  questions.  The 
court  may  also  allow  a  party  to  introduce  a  witness  after  the  argu- 
ment has  commenced,  or  recall  him  after  he  has  retired  from  the 
stand,  if  the  justice  of  the  case  requires  it.3 

I  f  any  question  is  asked  by  the  party  examining  the  witness  which 
the  adverse  party  supposes  will  elicit  an  illegal  answer,  the  latter 
should  object;  a  failure  to  object  at  the  proper  time  is  a  waiver  of 
exceptions  to  the  admissibility  of  the  evidence.  If  the  objection  is 
sustained  or  overruled,  the  party  aggrieved  by  the  ruling  of  the 
court  should  except  thereto.4 

§  23.  Argument  of  counsel. 

When  the  evidence  is  closed,  the  questions  of  fact  and  of  law 
arising  thereon  are  argued  by  the  counsel,  the  party  having  the 
burden  of  proof  being  entitled  to  the  opening  and  concluding  argu- 
ment. If  there  are  more  than  two  counsel  engaged  upon  a  side,  the 
order  and  number  of  speeches  is  subject  to  the  direction  of  the 
court.8  The  supreme  court  has  made  a  number  of  important  rules 
<>n  this  subject.  One  which  the  courts  are  frequently  called  upon 
to  enforce,  and  which  they  do  not  hesitate  to  enforce,  requires  that 
counsel  shall  "confine  the  argument  strictly  to  the  evidence  and  to 
the  arguments  of  opposing  counsel."  Cases  are  very  frequently  re- 
versed for  a  violation  of  this  rule.8 

§  24.  Charging  the  jury. 

After  the  conclusion  of  the  argument,  the  court  proceeds  to  in- 
st  met  or  "  charge  "  the  jury  upon  the  law  of  the  case.  The  charge 

i  R.  S.  2302. 

-  Watts  v.  Holland,  56  T.  54;  Willis  v.  Nichols,  3  Civ.  App.  154 
»RS.  iv 

tee  g  518,  port 

»R.  S.  P.".  i'.  i. 

*  Kul.'s  :j4-41.    The  subject  is  fully  discussed  hi  chapter  XXXIV. 


36  INTRODUCTION.  [§§  25,  26. 

must  be  in  writing,  and  signed,  and  must  be  given  in  the  precise 
language  in  which  it  is  written.  It  must  not  charge  or  comment 
on  the  weight  of  evidence.  It  must  be  so  framed  as  to  submit 
questions  of  fact  to  the  jury,  deciding  on  and  instructing  them  as  to 
the  law  arising  on  the  facts,  distinctly  separating  questions  of  law 
tVuiu  questions  of  fact.  After  the  general  charge  of  the  court  is 
given,  either  party  may  ask  additional  instructions.  The  charge 
asked  by  the  party  must  be  in  writing,  and  the  judge  must  give  the 
instructions  as  asked,  or  refuse  them ;  but  he  may,  however,  if  he 
chooses,  give  them  with  such  qualification  as  he  thinks  proper.  The 
charges  given  to  the  jury  may  be  carried  by  them  from  the  bar.1 
Charges  asked  and  not  given  should  not  be  read  in  the  hearing  of 
the  jury,  nor  taken  by  the  jury  in  their  retirement.2  The  rulings 
of  the  court  in  giving,  refusing  or  qualifying  instructions  are  re- 
garded as  excepted  to  in  all  cases.3  Where  a  charge  is  erroneous 
or  misleading,  the  party  injured  is  not  required  to  ask  a  special  in- 
struction ;  but  where  the  charge  is  incomplete,  but  correct  so  far  as 
it  goes,  the  party  will  not  be  heard  to  complain  in  the  appellate 
court  unless  he  has  asked  a  special  instruction.4 

§  25.  Nonsuit. 

Should  the  plaintiff,  after  hearing  the  charge  of  the  court,  be  of 
opinion  that  he  must  fail  upon  some  point  which  he  can  strengthen 
on  another  trial,  in  order  that  he  may  not  be  estopped  by  a  verdict, 
he  may,  before  the  jury  retires  from  the  bar,  take  a  nonsuit ;  the 
taking  of  a  nonsuit  will  not  prejudice  the  right  of  the  adverse  party 
to  be  heard  on  his  claim  for  affirmative  relief.  When  the  trial  is 
by  the  judge,  the  nonsuit  may  be  taken  at  any  time  before  the  de- 
cision is  announced.5 

§26.  Deliberations  of  the  jury;  returning  the  verdict. 

The  jury  may  return  their  verdict  without  leaving  the  bar,  or 
they  may  retire  in  charge  of  an  officer  to  consider  the  same;  and 
in  that  event  they  cannot  disperse,  without  the  consent  of  parties, 
until  they  have  agreed.  If  the  jury  disagree  as  to  what  was  the 
law  as  given  in  charge  or  desire  further  instructions,  they  may  re- 
turn into  court,  and  the  judge  may  give  an  additional  charge.  And 
so,  if  they  disagree  in  their  recollection  of  the  evidence  of  a  wit- 
ness, they  may  return  into  court  and  have  him  examined  as  to  what 
he  testified;  but  they  cannot  elicit  any  new  fact.6  When  the  jury 

1  R  S.  1300, 1316-1321 ;  Rules  61,  62.    See  chapter  XXXV. 

2  Rule  62. 

3  R  S.  1863. 

«  Alexander  v.  Robertson,  86  T.  511;  L  &  G.  N.  Ry.  Co.  v.  Welch,  86  T.  203,  and 
other  cases. 
•  R  S.  1301. 
6  R  S.  1304,  1307,  1308,  1309. 


§§  27,  as.]  IN  37 

have  airrved  they  must  come  into  court  and  render  their  verdict. 

•  •:it  «>f  parties  the  verdict  may  he  delivered  to  the  clerk 

during  the  adjournment  of  court.     The  verdict  may  be  general  or 

special;  a  general  verdict  is  a  finding  of  the  issue  in  favor  of  the 

plaintiff  or  defendant :  a  special  verdict  finds  the  facts  of  the  case 

and  to  the  court  to  determine  the  law.     Should  the  jury 

fail  to  agree,  by  consent  of  parties  a  juror  may  be  withdrawn  and 

a  mistrial  haii,  and  the  cause  may  be  again  tried  at  the  same  or  a 

tjuent  term.     The  jury  may  be  discharged  by  the  court  when 

their  efforts  to  agree  have  been  so  protracted  as  to  render  it  obvious 

that  it  must  eventuate  in  a  mistrial,  or  when  the  court  is  about  to 

adjourn.     Whatever  verdict  is  rendered,  or  whatever  else  may  lie 

ie  in  the  case,  must  be  entered  on  the  minutes  of  the  court.1 

'7.  New  trial  and  arrest  of  judgment. 

If  either  party  is  not  satish'ed  with  the  verdict  of  the  jury,  he 
may,  within  two  days  after  it  is  rendered,  and  before  the  adjourn- 
of  the  court,  move  for  a  new  trial  or  in  arrest  of  judgment. 
The  motion  must  be  in  writing,  and  must  distinctly  specify  the 
grounds  upon  which  it  is  founded.     If  the  motion  for  a  new  trial 
inted,  the  cause  is  to  be  tried  anew  at  the  next  term  of  the 
court;  if  the  motion  in  arrest  of  judgment  is  granted,  a  repleader 
may  be  awarded  and  the  cause  proceeded  with  as  before.     The  mo- 
tion must  be  determined  at  the  term  of  the  court  at  which  it  is 
made.     Not  more  than  two  new  trials  will  be  granted  to  a  partv, 
•t  when  the  jury  have  been  guilty  of  some  misconduct,  or  have 
erred  in  matter  of  law.     AVhere  the  service  is  by  publication,  and 
the  defendant  does  not  appear,  either  in  person  or  by  an  attorney 
of  his  own  selection,  a  new  trial  may  be  granted  on  affidavit  filed 
at  any  time  within  two  years  from  the  rendition  of  the  judgment.2 

£  28.  Appeals  and  writs  of  error. 

If  the  motion  for  new  trial  is  overruled,  the  party  aggrieved  may 
appeal  from  the  judgment.  Notice  of  the  appeal  must  be  given  in 
open  court,  and  is  entered  of  record,  and  the  appeal  is  perfected  by 
the  appellant  giving  an  appeal  bond  within  the  time  prescribed  by 
the  statute.1  Executors  and  administrators  may  appeal  without 
bond.  Notice  of  appeal  must  be  given,  and  the  assignments  of 
error  must  be  filed  before  the  transcript  is  taken  from  the  clerk's 
otlice. 

When  notice  of  appeal  is  given,  either  party  may  make  out  a 
statement  of  the  facts  proved  upon  the  trial,  which  must  be  pre- 

i  R.  S.  1322-1334. 

*  R.  S.  1370-1378. 

•  R.  a  1337;  Converse  v.  Trapp,  29  S.  W.  Rep.  415. 


I  r>or. 


38  INTRODUCTION.  [§  29. 

sented  to  the  adverse  party  for  his  signature,  and,  if  they  agree,  to 
the  judge  for  his  approval.  If  the  parties  cannot  agree,  each  must 
make  out  a  statement  and  submit  it  to  the  judge,  who  will  make 
out  a  true  statement  of  the  facts.  Instead  of  making  out  a  state- 
ment of  facts,  which  must  be  accompanied  with  a  transcript  of  all 
of  the  proceedings  had  in  the  cause,  the  parties,  with  the  consent 
and  approval  of  the  judge,  may  agree  upon  a  statement  of  the  case 
and  the  facts  proved,  without  the  necessity  of  copying  the  entire 
proceedings. 

If  no  notice  of  appeal  has  been  given,  or  if  the  appeal  was  not 
perfected,  the  party  may  at  any  time  within  twelve  months  after 
the  rendering  of  the  judgment  sue  out  a  writ  of  error,  which  will 
have  the  same  effect  in  removing  a  case  for  revision  as  an  appeal, 
provided  a  statement  of  facts  has  been  made  out.  A  statement  of 
facts  is  unnecessary  when  the  party  relies  for  a  reversal  upon  some 
error  of  law  arising  upon  the  pleadings.1 

§  29.  Trial  in  courts  of  civil  appeals. 

The  trial  of  causes  in  the  courts  of  civil  appeals  is  on  a  statement 
of  facts,  or  an  agreed  statement  of  the  pleadings  and  proof,  or  the 
conclusions  of  law  and  fact  certified  to  by  the  judge  of  the  trial 
court.  When  the  parties  fail  to  agree  the  judge  must  certify  the 
facts. 

The  trial  on  appeal  may  also  be  on  a  bill  of  exceptions  to  the 
opinion  of  the  judge,  or  on  a  special  verdict,  or  on  an  error  in  law, 
either  assigned  or  apparent  on  the  face  of  the  record.  The  court  of 
civil  appeals  must  admit  as  a  part  of  the  record,  to  be  examined  by 
the  judges,  a  bill  of  exceptions  not  signed  by  the  judge  trying  the 
cause  below,  upon  its  appearing  to  the  satisfaction  of  the  court  that 
the  facts  are  fairly  stated  therein ;  that  said  bill  was  prepared  in 
accordance  with  the  law  governing  the  preparation  of  such  bills, 
and  that  the  judge  trying  the  cause  refused  to  sign  the  same.  The 
truth  of  such  bill  of  exceptions  will  be  determined  by  the  court  on 
the  copies  of  the  affidavits  required  by  law  to  be  made  in  such  cases, 
contained  in  and  forming  a  part  of  the  record  transmitted  to  the 
court  of  civil  appeals. 

Causes  are  heard  and  determined  in  the  courts  of  civil  appeals 
upon  a  transcript  of  the  record  of  the  proceedings  had  in  the  trial 
court,  and  an  assignment  of  errors  distinctly  specifying  the  grounds 
on  which  the  appellant  or  plaintiff  in  error  relies. 

The  appellant  or  plaintiff  in  error  must  prepare  his  case  for  sub- 
mission by  filing  a  brief  of  the  points  relied  on  in  his  specifications 
of  error,  and  to  such  fundamental  errors  as  are  apparent  upon  the 
record.  As  an  introduction  he  should  make  a  general  and  succinct 

1 R  S.  1393  et  seq. 


§  29.]  39 

statement  of  the  nature  and  result  of  the  suit,  followed  by  a  state- 
ment of  all  the  material  and  pertinent  fa«  ;ying  those  upon. 
which  there  is  conflict  in  the  evidence,  and  giving  the  substance  of 
Silence  relating  thereto.     This  statement  will  be  accepted  by 
•  •tift  as  true.  nn!e»  tin-  adverse  party  shall  object  thereto  and 
jM»int  «nit  wherein  the  statement  is  incorrect,  in  which  case  the  court 
will  examine  the  record  to  ascertain  the  I; 

Kach  point  under  which  an  assignment  is  relied  upon  must  be 
I  as  a  proposition,  unless  the  a>siirnment  itself  is  in  the  shape 
proposition  to  be  maintained,  and  is  copied  in  the  brief.    Under 
proposition  there  must  be  a  brief  statement  of  such  proceed- 
in  the  record  as  are  necessary  and  sufficient  to  explain  and 
support  the  proposition,  with  a  reference  to  the  pages  of  the  record. 
statement  must  be  made  faithfully,  in  reference  to  the  whole 
of  that  which  is  in  the  record  having  a  bearing  upon  such  proposi- 
tion, upon  the  professional  responsibility  of  the  counsel  who  makes 
it.  and  without  intermixing  with  it  arguments,  reasons,  conclusions 
or  inferences.     An  argument  bearing  only  on  the  propositions  sub- 
mitted may  follow  each  statement,  but  it  is  not  necessary  or  proper 
;>eat  in  such  statement  what  has  already  been  presented  in  the 
.ire  n  era  I  preliminary  statement  heretofore  mentioned.    In  such  case 
it  will  be  sufficient  to  refer  to  such  general  preliminary  statement 
by  the  pair's  of  the  brief  on  which  the  particular  matter  is  found, 
iirief  must  be  signed  by  the  party  or  his  counsel.     A  copy  of 
the  brief  must  be  filed  and  deposited  with  the  papers  of  the  cause 
in  the  trial  court  at  least  five  days  before  the  time  of  filing  of  the 
transcript  in  the  court  of  civil  appeals,  of  which  notice  must  be  given 
by  the  clerk  of  the  court  to  the  appellee  or  defendant  in  error  or 
his  attorney  of  record.     In  twenty  days  after  such  notice  the  ap- 
pellee or  defendant  in  error  must  file  a  copy  of  his  brief  with  the 
clerk  of  the  court  below,  and  with  the  clerk  of  the  court  of  civil 
appeals  four  copies. 

<  >n  or  before  the  day  fixed  for  the  hearing  of  the  cause  and  be- 
fore the  opening  of  the  court,  four  copies  of  the  brief  of  each  of  the 
parties  required  to  be  filed  in  the  office  of  the  clerk  of  the  trial 
court  must  be  filed  with  the  papers  of  the  cause  in'the  office  of  the 
clerk  of  the  court  of  civil  appeals. 

A  court  of  civil  appeals  may  reverse  the  judgment  of  the  court 

below  and  proceed  to  render  such  judgment  as  should  have  been 

rendered.     When  it  is  necessary  that  some  matter  of  fact  should  be 

Tained  or  damages  should  be  •!,  or  the  matter  to  be  de- 

i  is  uncertain,  the  cause  should  be  remanded  for  new  trial  in 

>.urt  below. 

When  a  rau>e  is  decided  in  a  court  of  civil  appeals,  a  conclusion 
of  the  facts  and  law  of  :  inu^t  lie  tiled  in  the  cau>e  within 


40  INTRODUCTION.  [§  30. 

thirty  days  after  the  decision.  It  is  not  necessary  to  file  a  conclu- 
sion of  facts  in  causes  in  which  no  writ  of  error  will  lie  to  the  su- 
preme court ;  but  when  a  cause  is  reversed,  the  court  must  file  the 
reason  therefor. 

The  statute  provides  that  "  whenever  in  any  case  pending  before 
a  court  of  civil  appeals  there  should  arise  an  issue  of  law  which 
said  court  should  deem  it  advisable  to  present  to  the  supreme  court 
for  adjudication,  it  shall  be  the  duty  of  the  presiding  judge  of  said 
court  to  certify  the  very  question  to  be  decided  to  the  supreme 
court,  and  during  the  pendency  of  the  decision  by  the  supreme  court 
the  cause  in  which  the  issue  is  raised  shall  be  retained  for  final  ad- 
judication in  accordance  with  the  decision  of  the  supreme  court 
upon  the  issue  submitted." 

When  any  judge  dissents  as  to  any  conclusion  of  law  material  to 
the  decision  of  the  case  in  which  h'e  sits,  he  shall  enter  the  grounds 
of  his  dissent  of  record,  and  the  court  will,  upon  motion  of  a  party, 
or  on  its  own  motion,  certify  the  point  of  dissent  to  the  supreme 
court.  The  certificate  of  dissent  must  be  accompanied  by  certified 
copies  of  the  judgment  of  the  court  below  and  of  the  conclusions  of 
fact  and  law  as  found  by  the  court,  and  the  questions  of  law  upon 
which  there  is  a  division,  and  also  the  original  transcript,  if  so  or- 
dered by  the  supreme  court.  The  case  will  be  set  down  for  argu- 
ment in  the  supreme  court  (if  so  directed  by  the  court),  and  the 
attorneys  of  the  parties  notified.  After  the  question  is  decided, 
the  supreme  court  must  immediately  notify  the  court  of  civil  ap- 
peals of  their  decision  and  it  will  be  entered  as  the  judgment  of 
the  court.1 

§  30.  Error  to  a  court  of  civil  appeals. 

On  receipt  of  the  application  for  a  writ  of  error  to  a  court  of 
civil  appeals,  the  clerk  of  the  supreme  court  will  file  the  same  and 
the  accompanying  transcript,  and  enter  the  case  upon  the  applica- 
tion docket.  The  cases  will  be  heard  in  the  order  in  which  they 
are  numbered  on  the  docket.  On  a  refusal  of  a  writ  by  the  court 
the  clerk  will  transmit  to  the  clerk  of  the  court  of  civil  appeals  to 
which  the  writ  is  applied  for,  a  certified  copy  of  the  order  of  the 
court  denying  the  application,  and  must  return  all  the  file  papers 
of  that  court  to  its  clerk,  but  not  the  petition  for  the  writ.  Jf  the 
application  is  granted,  the  clerk  will  issue  a  writ  of  error  to  the 
judges  of  the  court,  the  judgment  of  which  is  sought  to  be  revised, 
advising  them  that  the  writ  of  error  has  been  granted.  The  clerk 
will  also  issue  a  citation  in  error  to  the  defendant  in  error,  or  his 
attorney  of  record,  notifying  him  that  the  writ  has  been  granted, 
and  to  appear  and  defend.  If  a  bond  is  required,  the  writ  will  be 

1  R  S.  1014  el  neq.    And  see  Rules  for  the  Courts  of  Civil  Appeals. 


§  31.]  KODUCTIo.V.  41 

issued  on  receipt  of  the  duly  certified  copy  of  the  bond  required  by 
the  statute,  unless  further  time  he  allowed  by  special  order  of  the 
court  in  tin1  particular  case.  The  certified  copy  of  the  bond  must 
be  tiled  within  ten  days  from  the  granting  of  the  application,  and  if 
no  bond  is  so  filed,  the  application  will  be  dismissed  by  the  court  of 
A  ii  motion.  Upon  service  of  citation,  thecase  will  be  put  upon 
the  trial  doc 

A  COM  ^tands  for  submission  on  the  first  regular  day  for  the  sub- 
on  of  causes,  coming  after  the  expiration  of  twenty  days  from 
the  day  on  which  the  writ  of  error  was  issued;  provided  the  cita- 
tion in  error  has  been  served  ten  days  before  such  submission  da}r. 
If  not  so  served,  then  the  case  is  subject  to  submission  the  first 
regular  submission  day  which  falls  ten  days  after  service  of  the 
citation. 

AVhen  a  cause  or  suit  is  taken  to  the  supreme  court  by  writ  of 
error,  the  brief  and  arguments  filed  in  the  court  of  civil  appeals 
must  be  submitted  to  the  supreme  court,  and,  in  addition  thereto,, 
the  attorney  for  either  party  may  file  additional  briefs  under  such 
rules  and  regulations  as  may  be  prescribed  by  the  supreme  court. 

The  judgment  or  decree  of  the  supreme  court  in  decided  cases 
must  be  pronounced  in  open  court.  The  opinion  of  the  court  must 
be  reduced  to  writing  in  those  cases  which  the  court  in  its  discre- 
tion may  deem  of  sufficient  importance  to  be  reported. 

The  judgments  of  the  supreme  court  become  final  at  the  expira- 
tion of  fifteen  days,  when  no  motion  for  rehearing  has  been  tiled,, 
and  the  mandate  thereon  may  be  issued  to  the  court  in  which  the 
original  judgment  was  rendered.  If  the  mandate  for  any  cause  has 
been  revoked,  the  clerk  of  the  supreme  court  will  at  once  notify  the 
party  to  whom  the  mandate  was  delivered,  and  the  clerk  of  the 
court  to  which  it  was  directed,  to  return  it  at  once.  A  rehearing 
may  be  graqted  by  the  court,  upon  motion  in  writing  therefor,  filed 
within  fifteen  days  after  the  date  of  entry  of  the  judgment  or  de- 
cision of  the  court.  Should  the  court  adjourn  within  less  time  than 
:;  d.iys  after  the  rendition  of  the  judgment,  it  may  make  such 
rules  and  regulations  in  reference  to  the  filing  of  the  motion  as  it 
may  deem  best  for  the  promotion  of  the  interest  of  all  the  parties 
concerned.  Notice  of  an  application  for  a  rehearing  may  be  served 
upon. one  of  several  parties  or  their  attorneys,  and  the  motion  for 
a  rehearing  may  be  heard  and  determined  after  live  days  from  the 
return  of  the  precept  served.1 

§81.  Judgment  liens. 

judgment  of  any  court  of  this  state,  or  of  the  United  States 
rendered  in    this  state,  an  abstract  of  which  is  properly  recorded 

1  See  R  S.  967  et  seq.;  also  Rules  for  the  Supreme  Court. 


42  INTRODUCTION.  [§  32. 

and  indexed,  as  required  by  the  statute  relating  to  judgment  liens, 
operates  as  a  lien  upon  the  real  estate  of  the  defendant  situated  in 
the  county  where  such  record  and  index  are  made,  and  upon  all 
real  estate  situated  in  such  county  which  the  defendant  may  there- 
after acquire.  The  lien  so  acquired  continues  for  ten  years  from 
the  date  of  such  record  and  index,  unless  the  plaintiff  shall  fail  to 
him4  execution  upon  his  judgment  within  twelve  months  after  the 
rendition  thereof,  in  which  case  the  lien  ceases  to  exist.  The  satis- 
faction of  the  judgment,  in  part  or  in  whole,  may  be  shown  by  the 
return  or  a  certified  copy  of  the  return  on  an  execution,  or  by  a  re- 
ceipt, acknowledgment  or  release  signed  by  the  party  entitled  to 
the  payment,  his  agent  or  attorney  of  record,  duly  acknowledged 
or  proven  for  record.  It  is  the  duty  *of  the  clerk  to  enter  such 
credits  and  satisfaction  whenever  made  to  appear.1 

§  32.  Execution. 

The  judgment  of  a  court  of  record  may  be  enforced  by  execution. 
If  no  appeal  is  taken  or  writ  of  error  sued  out,  the  clerk,  after  the 
rising  of  the  court,  must  tax  the  costs  and  issue  an  execution  in  ac- 
cordance with  the  judgment.  If  the  judgment  is  affirmed,  or  re- 
versed and  rendered  by  the  appellate  court,  execution  is  in  the  same 
manner  issued  upon  the  receipt  of  its  mandate.  The  execution  is 
placed  in  the  hands  of  the  proper  officer,  by  whom  it  must  be  exe- 
cuted in  accordance  with  its  commands,  or  some  legal  reason  shown 
why  it  is  not  done,  and  be  returned  within  the  time  specified  in  the 
writ.  Should  the  execution  be  returned  not  satisfied,  other  execu- 
tions may  be  issued  from  time  to  time  to  the  counties  in  which 
the  defendant  in  the  execution  has  property,  until  the  judgment  is 
satisfied. 

Execution  must  be  issued  within  twelve  months  after  the  rendi- 
tion of  the  judgment.  If  not  so  issued,  no  execution  can  issue  until 
such  judgment  is  revived.  If  the  first  execution  has  issued  within 
the  time  mentioned,  the  judgment  does  not  become  dormant  unless 
ten  years  have  elapsed  between  the  issuance  of  executions  thereon, 
and  execution  may  be  issued  at  any  time  within  ten  years  after  the 
issuance  of  the  preceding  execution. 

On  the  death  of  a  plaintiff  in  the  judgment,  or  one  of  several 
plaintiffs,  execution  may  issue  in  the  name  of  the  legal  representa- 
tive of  the  deceased  sole  plaintiff,  or  in  the  name  of  the  surviving 
plaintiffs  and  the  legal  representative  of  the  deceased  plaintiff,  as 
the  case  may  require,  upon  an  affidavit  of  such  death  filed  with  the 
clerk,  together  with  a  legal  certificate  of  the  appointment  of  such 
representative.  The  statute  also  prescribes  the  rules  governing  the 
issuance  of  an  execution  on  the  death  of  an  executor,  of  a  nominal 

» R.  S.  3283-3293. 


§  33.]  INTRODUCTION.  43 

plaintiff,  or  erf  the  defendant  when  the  judgment  against  him  is  for 
money  or  for  property.  The  manner  of  executing  the  writ  and  of 
the  return  thereof  is  fully  defined  by  the  statute  and  must  be  strictly 
observed.? 

i.  How  to  conduct  a  lawsuit. 

A  general  view  of  the  practice  in  civil  cases  is  given  in  the  pre- 
ceding pa^-vs.  and  its  details  are  fully  stated  in  the  chapters  relating 
t<»  the  several  proceedings.  To  those  who  have  not  heretofore  been 
engaged  in  active  practice  in  this  state,  a  brief  statement  of  what  is 
to  be  done  in  the  progress  of  a  lawsuit  from  its  commencement  to 
inclusion  may  be  of  some  service. 

The  preparation  of  the  petition  is  the  first  and  most  important 
net  in  behalf  of  the  plaintiff.  For  this  purpose  a  knowledge  of  all 
the  facts  upon  which  the  controversy  is  based,  and  constituting  the 
cause  of  action  and  the  grounds  of  defense,  so  far  as  the  same  can 
!>«•  Ascertained,  is  essential.  A  memorandum  of  the  name  and  resi- 
dence of  each  witness  who  will  be  called  on  the  trial,  and  the  facts 
within  his  knowledge,  should  be  made  to  enable  the  pleader  to  state 
in  legal  form  the  cause  of  action,  and  to  anticipate  as  far  as  possible 
the  grounds  which  may  be  relied  upon  as  a  defense  thereto.  The 
petition  must  be  folded  and  the  names  of  the  parties  indorsed 
thereon;  it  is  then  to  be  delivered  to  the  clerk  of  the  court  in  which 
suit  is  instituted,  who  will  file  it,  with  an  indorsement  of  the  date  of 
filing,  and  enter  the  suit  on  his  file  docket.  Before  issuing  process 
the  clerk  may  require  security  for  costs,  which  it  is  the  duty  of  the 
plaintiff  to  give,  or  in  its  place  file  with  the  clerk  an  affidavit  that 
he  is  too  poor  to  pay  the  costs  of  court,  and  is  unable  to  give  secu- 
rity therefor.  The  clerk  may  contest  the  inability  of  the  party  to 
give  security,  but  must  file  the  petition  and  enter  the  same  on  the 
docket.  The  judge  may,  at  the  next  term  of  the  court,  require  se- 
curity to  be  given.  Security  for  costs  cannot  be  required  of  execu- 
tors, administrators  or  guardians  appointed  by  the  courts  of  this 
state. 

Contemporaneously  with  the  institution  of  suit  the  plaintiff  must 
make  preparation  for  trial.  Witnesses  \vhose  personal  attendance 
is  HMjiiireil  must  be  subpoenaed.  Interrogatories,  with  notice  of  in- 
tention to  apply  for  a  commission  to  take  the  testimony  of  witnesses 
whose  personal  at  tendance  cannot  be  compelled,  should  I>H  tiled  and 
served  upon  the  adverse  party.  The  defendant  when  served  with 
process  should  use  the  same  diligence  in  preparation  for  trial. 

It  is  the  duty  of  each  party  to  see  that  all  process  issued  on  his 
application  has  been  properly  executed  and  returned.  Mistakes 
and  informalities  in  returns  may  be  corrected  by  the  officer  at  any 

1 R.  S.,  title  41.  p.  463. 


4A  INTRODUCTION.  [§  33. 

time  under  the  direction  of  the  court;  but  when  such  corrections  of 
defective  service  cannot  be  made,  alias  process  should  be  promptly 
issued. 

If,  pending  suit,  a  party  plaintiff  dies,  his  executor  or  adminis- 
trator, or,  in  some  cases,  his  heirs,  may  be  made  parties  plaintiff. 
If  no  suggestion  of  such  death  is  made  at  the  first  term  of  the  court 
thereafter,  the  defendant  may  cause  the  executor,  administrator  or 
heir  to  be  cited,  and,  on  his  failure  to  appear,  the  defendant  may 
by  motion  have  the  suit  discontinued. 

On  the  death  of  a  defendant  to  a  suit,  his  executor,  administrator 
or  heir  may  be  made  a  party.  When  the  defendant  has  been  per- 
sonally served  with  process,  at  least  ten  days  before  the  return  day, 
exclusive  of  the  days  of  service  and  return,  the  answer  must  be  filed 
on  or  before  the  second  day  of  the  appearance  term,  and  before  the 
call  of  the  appearance  docket  on  that  day. 

All  suits  when  filed  are  entered  upon  the  file  docket.  Upon  ap- 
plication of  either  party  to  a  suit  made  on  the  first  day  of  the  term 
at  which  the  suit  is  to  be  tried,  and  the  deposit  of  the  jury  fee,  or 
affidavit  be  made  of  inability  to  make  such  deposit,  the  suit  will  be 
entered  on  the  jury  docket. 

When  a  cause  is  called  for  trial  by  a  jury,  the  array  of  jurors 
may  be  challenged  for  "  cause  "  specified  in  the  statute,  and  in  the 
manner  prescribed.  If  the  challenge  is  sustained  other  jurors  must 
be  summoned.  Individual  jurors  may  be  challenged  for  cause,  or 
peremptorily  without  assigning  cause.  Peremptory  challenges  can- 
not exceed  six  by  each  party  in  the  district  court  and  three  in  the 
county  court.  The  names  of  the  jurors  constituting  the  array, 
after  the  vacancies  caused  by  challenges  have  been  filled,  are  drawn, 
and  a  jury  is  impaneled  and  sworn. 

The  order  of  trial  is  prescribed  by  the  statute.  The  pleadings 
of  each  party  having  been  read,  the  party  having  the  burden  of 
proof  is  permitted  to  state  briefly  the  nature  of  his  claim  or  de- 
fense and  the  facts  in  support  thereof  and  introduce  his  evidence. 
The  adverse  party  and  the  intervener  are  permitted  to  do  the  same. 
The  parties  are  then  confined  to  rebutting  evidence.  Omissions  in 
testimony  may  be  supplied  on  such  terms  as  the  court  may  direct. 
The  case  may  then  be  submitted  to  the  jury  under  the  charges  and 
instructions  of  the  court.  Additional  instructions  may  be  asked 
by  either  party,  and  should  be  asked  when  any  part  of  the  charge 
given  by  the  court  is  deemed  erroneous,  or  fails  to  fully  present 
the  law  of  the  case.  The  charges  given  to  the  jury  may  be  car- 
ried with  them  in  their  retirement,  together  with  the  pleadings  and 
any  written  evidence,  except  the  depositions  of  witnesses.  When  a 
part  only  of  a  paper  has  been  read  in  evidence,  it  must  be  detached 
from  that  which  is  excluded. 


§  33.] 

The  verdict  of  the  jury  must  be  in  writing  and  signed  l.y  the 

foreman.     If  a  juror  dies  or  is  disabled  from  sitting,  the  verdict 

must  In-  signed  by  all  of  the  remaining  jurors.     If  the  verdict  is 

informal  «>r  drlVctive  it  may  be  reformed  at  the  bar  under  the  di- 

»n  of  the  court. 

judgment  of  the  court  must  conform  to  the  pleadings,  the 
nature  of  tin-  cast-  proved,  and  the  verdict.     A  r>  ii<>H',t>i r  of  a  part 
of  a  verdict  or  judgment  may  be  made  in  open  court  or  in 
ti<>n  by  a  release  in  writing. 

An  appeal  or  writ  of  error  maybe  taken  to  the  courts  of  civil 

tls  from  final  judgments  of  the  district  court  in  civil  cases, 

from  final  judgments  of  the  county  court  in  civil  cases  of  which  the 

county  court  lias  original  jurisdiction,  and  .from  final  judgments  of 

the  county  court  in  civil  cases  of  which  the  court  has  appellate 

jurisdiction,  when  the  judgment   or  amount  in  controversy  ex- 

-  $100,  exclusive  of  interest  and  costs. 

An  appeal  may  be  taken  from  an  interlocutory  order  of  the  dis- 
trict court  appointing  a  receiver  or  trustee  in  a  cause,  within  twenty 
days  from  the  entry  of  the  order.  In  other  cases  an  appeal  may 
be  taken  during  the  term  of  the  court  at  which  the  final  judgment 
is  rendered,  notice  of  which  must  be  given  in  open  court  within 
two  days  after  judgment  overruling  a  motion  for  new  trial.  An 
appeal  must  be  perfected  within  twenty  days  after  the  expiration  of 
the  term,  by  giving  bond,  or  affidavit  in  lieu  thereof.  If  the  term 
of  the  court  may  continue  more  than  eight  weeks,  the  appeal  must 
be  perfected  within  twenty  days  after  notice  is  given,  or  within 
thirty  days  if  the  appellant  resides  out  of  the  county.  An  appeal 
by  the  state  of  Texas,  or  by  an  executor,  administrator  or  guardian 
appointed  by  the  courts  of  this  state,  is  perfected  by  the  notice  of 
appeal  gi\vn  in  open  court  as  above  stated.  A  writ  of  error  may 
be  sued  out  within  twelve  months  after  the  final  judgment  is  ren- 
d'-red. 

Where  a  statement  of  the  facts  in  evidence  in  the  trial  court  is 
necessary  for  the  determination  of  a  cause  on  appeal  or  error,  it 
must  be  prepared,  signed,  approved  and  filed  during  the  term  at 
which  the  trial  was  had.  The  court,  by  an  ordei  entered  of  record, 
may  authorize  the  statement  of  facts  to  be  made  up,  signed  and 
filed  within  ten  days  after  the  adjournment  of  the  term. 

The  writs  of  attachment,  garnishment,  injunction,  and  seques- 
tration, and  the   practice  in   other  special   proceedings,  such  as 
•;iss  to  try  title,  trial  of  right  of  proper i  \  ill  be  fully 

discussed  in  the  following  pages.  The  general  rules  of  practice 
apply  in  those  proceedings,  unless  otherwise  provided;  the  practice, 
however,  is  largely  statut 


CHAPTER  II. 


OF  COURTS  AND  JUDGES. 


34.  Judicial  power,  how  vested. 

85.  Judicial  districts. 

86.  County  courts. 

87.  Courts  to  be  held  at  county  seat. 
38.  Judges  disqualified,  when;   pro- 
cedure. 

89.  Judges  of  courts  of  civil  appeals 
disqualified. 

40.  Judges    of  district   and    county 

courts  disqualified. 

41.  Appointment  of  a  special  judge 

where  the  district  or  special 
judge  is  disqualified,  or  the 
former  is  absent  or  unable  to 
act. 

42.  Election    of   a    special    district 

judge. 

43.  Exchange  of  districts  by  district 

judges. 

44  Procedure  where  county  judge  is 
disqualified. 

45.  Disqualification  of  judge  by  in- 

terest. 

46.  Disqualification  of  judge  by  rela- 

tionship. 


§  47.  Disqualification  of  judge  where 
he  has  acted  of  counsel. 

48.  How  disqualification  of  judge  de- 

termined. 

49.  Acts  of  disqualified  judge. 

50.  Special  judges;    their   qualifica- 

tions. 

51.  Powers  of  special  judge. 

52.  Adjournment  of  term  where  the 

judge  fails  to  appear. 

53.  Terms  of  the  district  court.     % 
54  Special  terms  of  the  district  court. 

55.  Terms  of  the  county  court. 

56.  Powers    of   district    courts    and 

judges. 

57.  Powers  of  the  county  court  and 

the  judges  thereof. 

58.  Judicial  discretion. 

59.  Proceedings  in  vacation. 

60.  Contempt  of  court. 

61.  Proceedings  in  contempt  cases. 

62.  Writs  and  process. 

63.  Seals    of    district    and    county 

courts. 
64  Minutes  of  court. 


§  34.  Judicial  power,  how  vested. 

The  judicial  power  of  the  state  is  vested  in  one  supreme  court,  in 
courts  of  civil  appeals,  in  a  court  of  criminal  appeals,  in  district 
courts,  in  county  courts,  in  commissioners'  courts,  in.  courts  of  jus- 
tices of  the  peace,  and  in  such  other  courts  as  may  be  provided 
by  law.  The  legislature  may  establish  such  other  courts  as  it  may 
deem  necessary,  and  prescribe  the  jurisdiction  and  organization 
thereof,  and  may  conform  the  jurisdiction  of  the  district  and  other 
inferior  courts  thereto.1  All  courts  shall  be  open,  and  every  person 
for  an  injury  done  him  in  his  lands,  goods,  person  or  reputation 
shall  have  remedy  by  due  course  of  law.2  The  powers  of  the  gov- 
ernment of  the  state  are  divided  into  three  distinct  departments, 

1  Const,  art.  V,  §  1. 

2  Const,  art  I,  §  la 


§§  35,  36.]  COURTS   AND   JUDGES.  47 

legislative,  executive,  and  judicial,  and  no  person,  or  collection  of 
persons,  being  of  one  of  these  departments,  shall  exercise  any  power 
properly  attached  to  either  of  the  others,  except  in  instances  ex- 

v  permitted  by  the  organic  law.1 

5.  Judicial  districts. 

The  power  to  divide  the  state  into  judicial  districts  is  vested  in 
the  legislature,  and  the  number  of  such  districts  may  be  increased 
or  diminished  by  law.2  The  legislature  may  increase  or  diminish 
the  number  of  judicial  districts  and  prescribe  what  territory  may 
be  embraced  in  a  given  district.  In  the  absence  of  a  constitutional 
prohibition,  the  legislature  has  the  power  to  create  a  judicial  dis- 
trict out  of  territory  however  small,  when  in  its  judgment  the  pub- 
lic interest  requires  it.  It  may  divide  a  county  into  two  judicial 
districts,  and  it  is  held  that  such  power  existed  notwithstanding 
the  provision  of  the  constitution  of  1876  that  the  terms  of  the  dis- 
trict court  should  be  held  at  one  place  in  each  county.8 

§  36.  County  courts. 

The  constitution  provides  that  there  shall  be  established  in  each 
county  in  this  state  a  county  court,  which  shall  be  a  court  of  record.4 
The  county  court  is  a  court  of  record  and  of  general  jurisdiction  in 
its  appropriate  sphere,  under  the  constitution  and  laws.  Its  judg- 
ments, on  collateral  attack,  are  entitled  to  all  the  absolute  presump- 
tions that  obtain  in  favor  of  the  judgments  of  other  domestic  courts 
of  general  jurisdiction.  Where  the  case  is  within  the  jurisdiction 
of  the  court,  and  no  fact  appears  affirmatively  in  the  record  suffi- 
cient to  defeat  the  jurisdiction,  evidence  aliunde,  even  where  the 
judgment  is  silent  as  to  the  process  or  its  service,  will  not  be  heard 
to  contradict  the  presumption  of  regularity,  or  to  establish  a  fact 
outside  of  the  record,  for  the  purpose  of  showing  that  jurisdiction 
ih«-  prrson  did  not  in  fact  attach,  and  thus  impeach  the  judg- 
ment. If  the  judgment  itself  finds  and  recites  a  valid  notice  or  cita- 
tion and  service,  that  controls  the  rest  of  the  record ;  otherwise  if 
it  recites  an  invalid  citation,  or  names  the  precise  character  thereof. 
If  the  judgment  is  silent,  then  the  whole  process  in  the  record  may 
be  examined.  This  is  as  far  as  the  courts  can  go  when  the  pro- 
ng is  collateral.5 

i  Const,  art.  II.  ?'  1. 

*  Const,  art.  V 

»Lytle  v.  Ualff,  75  T.  128  (12  S.  W.  Rep.  CIO).  The  amendment  of  1891  pro- 
that  the  terms  of  the  district  court  shall  be  held  at  the  county  seat. 
ArtV 

«  Const,  art  V.  $5  1.1. 

» Martin  v.  Hums  s<)  T.  676  (16  S.  W.  Rep.  1072);  Guilford  v.  Love,  49  T.  71V 
Murchixm  v.  \Vliit.-.  ~>l  T.  85;  Treadway  v.  Eastburn,  57  T.  209:  F..\\  I,T  v.  Sim|v- 
son,  79  T.  611  (15  S.  W.  Rep.  682);  Wilkinson  v.  Schoonmaker,  77  T.  61'.  i  1  >.  \\ . 
Rep.  228). 


48  COURTS   AND   JUDGES.  [§§  37,  38. 

£  37.  Courts  to  be  held  at  county  seat. 

All  terms  of  the  district  and  county  courts  must  be  held  at  the 
count  v  scat.1  The  commissioners'  court  may,  when  necessary,  pro- 
vide buildings,  rooms  or  apartments  at  the  county  seats,  other  than 
the  court-house,  for  holding  the  sessions  of  the  county  courts.2 

The  act  of  1889,  which  divided  Dallas  county  into  two  judicial 
districts  and  made  the  dividing  line  to  pass  through  the  center  of 
the  court-house,  contemplated  that  the  courts  of  said  districts  should 
be  held  in  the  one  court-house  of  Dallas  county.  After  the  de- 
struction of  the  court-house  which  existed  when  the  law  was  enacted, 
the  county  commissioners'  court  rented  for  court-house  purposes  a 
building  which  was  located  entirely  within  the  territorial  limits  of 
one  of  the  districts,  and  it  was  held  that  sessions  of  the  district 
courts  of  both  districts  could  be  legally  held  in  such  rented  build- 
ing.8 

On  the  last  day  of  the  term,  and  while  a  special  judge  was  en- 
gaged in  the  court  room  trying  a  cause  in  which  the  district  judge 
was  disqualified,  the  district  judge  in  another  room  heard  and 
granted  a  motion  for  a  new  trial.  At  the  next  term  a  motion  was 
made  to  vacate  the  order  on  the  ground  that  the  act  of  the  judge 
in  another  room  from  that  designated  by  the  county  court  as  the 
court  room  was  not  the  act  of  the  court,  and  for  the  further  reason 
that  counsel  opposed  to  the  motion  were  engaged,  one  as  the  spe- 
cial judge  and  the  other  as  counsel  in  the  case.  It  was  held  by  the 
supreme  court  that  the  district  judge  could  act  in  any  room  in  the 
court-house  he  might  select.4 

§  38.  Judges  disqualified. 

The  constitution  provides  as  follows:  No  judge  shall  sit  in  any 
case  wherein  he  may  be  interested,  or  when  either  of  the  parties 
may  be  connected  with  him  either  by  affinity  or  consanguinity, 
within  such  a  degree  as  may  be  prescribed  by  law,  or  when  he  shall 
have  been  counsel  in  the  case.  When  the  supreme  court,  the  court 
of  civil  appeals,  or  any  member  of  either,  shall  be  thus  disqualified 
to  hear  and  determine  any  case  or  cases  in  said  court,  the  same 
shall  be  certified  to  the  governor  of  the  state,  who  shall  immedi- 
ately commission  the  requisite  number  of  persons  learned  in  the  law, 
for  the  trial  and  determination  of  such  cause  or  causes.  When  a 
judge  of  the  district  court  is  disqualified  by  any  of  the  causes  above 
stated,  the  parties  may,  by  consent,  appoint  a  proper  person  to  try 
said  case;  or,  upon  their  failing  to  do  so,  a  competent  person  may 
be  appointed  to  try  the  same  in  the  count}^  where  it  is  pending,  in 

1  R.  S.  818;  Const,  art.  V,  §  7. 

2  R.  S.  1548. 

3  Wheeler  v.  Wheeler,  76  T.  489  (13  S.  W.  Rep.  305). 

<  Niagara  Ins.  Co.  v.  Lee,  73  T.  641  (11  S.  W.  Rep.  1024). 


§  39.]  COURTS   A.ND  JCDOES.  49 

such  manner  as  may  1<  :-ibed  by  law.     And  the  district  j', 

may  <>.\«'l:an<:e  districts  or  hold  courts  for  each  other  when 

deem  it  expedient,  and  shall  do  so  when  requiivd  l»y  law.  The 
disqualification  of  judges  of  inferior  tribunals  shall  be  remedied,  and 
vacancies  in  their  offices  filled,  as  may  be  prescribed  by  law.1 

Th«-  statute  provides  that  a  judge  of  the  supreme  court  or  court 
of  civil  appeals  shall  not  sit  in  any  cause  u  wherein  he  may  be  in- 
in  the  question  to  be  determined,  or  where  either  of  the 
parties  may  be  connected  with  him  by  affinity  or  consanguinity 
within  the  third  degree,  or  where  he  shall  have  been  of  counsel  in 
the  cause." 2  The  same  provision  is  made  with  respect  to  district 
and  county  judges,  but  as  respects  interest  the  provision  is  that 
they  shall  not  sit  in  any  cause  wherein  they  may  be  interested.3 

A  waiver  by  the  parties  to  a  suit  of  an  exception  to  the  judge  who 
is  disqualified  to  sit  on  account  of  interest  cannot  give  jurisdic- 
tion, or  capacitate  a  person  legally  incompetent  to  sit  in  the  case; 
and  a  judgment  thus  rendered,  though  by  confession,  is  void.  The 
consent  of  parties  cannot  remove  his  incapacity,  or  restore  his  com- 
petency, against  the  prohibition  of  the  law,  which  was  designed 
not  merely  for  the  protection  of  a  party  to  the  suit,  but  for  the  gen- 
eral interests  of  justice.4 

At  the  common  law  as  it  prevailed  in  England,  and  was  adopted 
by  the  people  of  the  United  States,  there  could  be  no  challenge  or 
recusation  of  a  judge  on  the  ground  that  he  had  been  of  counsel.* 

S  39.  Judges  of  courts  of  civil  appeals  disqualified. 

The  constitution  provides  that  any  two  justices  of  the  supreme 
court  shall  constitute  a  quorum,  but  makes  no  provision  as  to  the 
courts  of  civil  appeals.'  The  statute  of  1892  provides  that  "a  ma- 
jority of  the  judges  of  the  several  courts  of  civil  appeals  shall  con- 
stitute a  quorum  for  the  transaction  of  business."7  It  will  be  no- 
ticed that  the  constitution  provides  for  the  appointment  of  a  judge 
where  any  member  of  the  supreme  court  or  court  of  civil  appeals  is 
disqualified,"  while  the  provision  of  the  statute  is  that  special  judges 
are  to  be  commissioned  when  two  members  of  either  court  are  dis- 
qualified.9 With  the  law  in  this  condition,  the  supreme  court  holds 

» Const,  art  V,  §  11;  R  &  969,  102L 

'R&969,  1021. 

»R&  1068,  1120. 

«  Chambers  v.  Hodges,  23  T,  101 

»The  Richmond,  9  Fed.  Rep.  863,  11  Myer's  Fed.  Dec^  fx  18,  §  8,  citing  Coke, 
Litt  294;  2  Bro.  Civ.  &  Adm.  Law,  369;  3  BL  Com.  361;  Lyon  v.  State  Bank,  1 
Stewart,  442. 

•Const.,  art  V,  §<  2»  6;  R  S,  033. 

»  R  S.  995. 

8  Const,  art  V,  §  11.    See  §  3»  tiyiro, 

•R  8,969,  10. '1. 
4 


50  COUKTS   AND    JUDGES.  [§§  40,  41. 

that,  where  one  member  of  a  court  of  civil  appeals  is  disqualified, 
the  other  two  judges  may  determine  the  case;  that  the  fact  of  dis- 
qualification need  not  be  certified  to  the  governor.1  The  appoint- 
ment of  a  special  judge  in  such  a  case,  however,  will  not  render  the 
judgment  void.- 

Suit  was  brought  by  a  tax-payer  to  enjoin  the  collection  of  a  city 
tax,  to  prevent  a  further  issue  of  city  bonds,  and  to  cancel  bonds 
already  issued.  A  judge  of  the  court  of  civil  appeals  was  a  property 
holder  in  the  city.  Such  case  coming  to  said  court  of  civil  appeals, 
the  judge  was  interested  therein,  and  so  was  disqualified.  Whether 
section  11  of  article  V  of  the  constitution  was  intended  fully  to 
define  every  ground  of  disqualification  of  a  judge,  and  to  take  from 
the  legislature  all  power  to  prescribe  additional  grounds,  is  noticed 
in  this  case  but  not  decided.3 

A  judge  of  a  court  of  civil  appeals  may  sit  in  a  case  which  was 
tried  before  him  as  district  judge.4  Where  a  judge  of  a  court  of 
civil  appeals  does  not  sit  in  the  determination  of  a  cause,  the  action 
of  the  other  two  members  in  disposing  of  the  case  is  valid,  and  the 
question  involving  his  disqualification  under  the  constitution  does 
not  give  the  supreme  court  jurisdiction  by  writ  of  error.5 

§  40.  Judges  of  district  and  county  courts  disqualified. 

Kb  judge  of  the  district  or  county  court  is  permitted  to  sit  in  any 
cause  wherein  he  may  be  interested,  or  where  he  shall  have  been  of 
counsel,  or  where  either  of  the  parties  may  be  connected  with  him 
by  affinity  or  consanguinity  within  the  third  degree.6 

§  41.  Appointment  of  a  special  judge  where  the  district  or  special 
judge  is  disqualified,  or  the  former  is  absent  or  unable  to  act. 

Whenever  any  case  or  cases  are  called  or  pending  in  which  the 
district  judge  or  the  special  judge  chosen  is  disqualified  from  trying 
the  same,  no  change  of  venue  is  made  necessary  thereby  ;  but  the 
parties  or  their  counsel  have  the  right  to  select  and  agree  upon  an 
attorney  of  the  court  for  the  trial  thereof.  If  no  selection  is  made 
when  or  before  the  case  is  called  for  trial,  or  if  the  trial  of  the  case 
is  pending,  and  the  district  judge  becomes  unable  to  act,  or  is  ab- 
sent, and  a  special  judge  is  selected  who  is  disqualified,  and  the  par- 
ties fail  to  select  a  special  judge  at  once  who  is  qualified,  then  the 
district  judge,  or  the  special  judge  presiding,  must  certify  the  fact 


of  Austin  v.  Nalle,  85  T.  520  (22  S.  W.  Rep.  668,  960);  Holt  v.  Maverick, 
86  T.  457  (25  S.  W.  Rep.  607);  Gwin  v.  O'Daniel,  22  S.  W.  Rep.  876. 
2  W.  U.  Tel.  Co.  v.  McLeod,  24  S.  W.  Rep.  815. 
»  City  of  Austin  v.  Nalle,  85  T.  520  (22  S.  W.  Rep.  668,  960). 
<Mexia  v.  Lewis,  3  Civ.  App.  113  (21  S.  W.  Rep.  1016). 
6  Holt  v.  Maverick,  86  T.  457  (25  S.  W.  Rep.  607). 
«  R.  S.  1088,  1129.    See  §  5,  supra. 


§  41.]  UTS   AND   Jl  ']>.  M 

immediately  t<>  the  governor,  by  mail,  telegram,  or  otherwise,  where- 
upon the  i:<>vernor  is  required  to  appoint  a  special  judge  not  so  dis- 
qualified to  try  the  case.  The  evidence  of  the  appointment  may  In- 
traiiMnitted  l»y  telegram  or  otherwise.  The  person  appointed  must 
qnalil'y,  ami  proceed  to  try  the  case  when  called  or  reached.1 

Whenever  a  special  judge  is  agreed  upon  by  the  parties,  or  is  ap- 
pointed by  the  governor  for  the  trial  of  any  particular  cause  as 
above  provided,  the  clerk  must  enter  in  the  minutes  of  the  court, 
[•art  of  the  proceedings  in  such  cause,  a  record,  showing: 

1.  That  the  judge  of  the  court  was  disqualified  to  try  the  cause; 
and 

2.  That  such  special  judge  [naming  him]  was,  by  consent,  agreed 
upon  by  the  parties  to  try  the  cause;  or 

3.  That  the  parties  having  failed  to  agree  upon  a  proper  person 
to  try  the  cause,  and  the  judge  of  the  court  having  certified  that 
fact  to  the  governor,  he  had  appointed  such  special  judge  [;«///<///</ 

to  try  the  cause;  and 

4.  That  the  oath  prescribed  by  law  had  been  duly  administered 
to  such  special  judge.2    The  same  record  is  to  be  made  on  the  ap- 
pointment of  a  special  county  judge.3 

There  being  no  law  authorizing  appeals  from  a  refusal  of  a  dis- 
trict judge  to  certify  to  the  governor  his  disqualification,  the  su- 
preme court  has  no  jurisdiction  to  revise  his  ruling,  and  has  no 
power  to  enforce  by  the  writ  of  mandamus  or  otherwise  the  per- 
formance of  such  a  duty.4 

The  record  should  in  all  cases  show  how  a  special  judge  trying  a 
cause  became  such;  but  if  the  record  is  silent,  a  party  who,  with- 
out objection,  has  participated  in  the  trial  of  a  cause  before  such 
judge,  cannot,  for  the  first  time  on  appeal,  raise  the  objection  that 
his  authority  did  not  appear.5  It  is  sufficient  if  the  record  of  ap- 
pointment be  made  before  the  proceedings  in  the  case  are  ended  in 
the  district  court.8 

The  statute  does  not  require  that  the  parties  to  a  suit  in  which  a 
district  judge  is  disqualified  shall  have  the  entire  first  term  after 
suit  brought  in  which  to  agree  on  a  special  judge;  nor  by  implica- 
tion forbid  the  appointment  of  a  judge  at  any  time  when  IHH  «-s>ai  y 
if  the  parties  fail  to  agree  upon  some  one  to  act  as  special  judge.7  The 

1 R  S.  1069.    The  same  provision  is  made  for  the  appointment  of  a  special 
county  judge.    R.  S.  1132. 
»  R.  S.  1070. 
»R  &  1132o. 
*  ( irigsby  v.  Bowles,  79  T.  138  (15  S.  W.  Rep.  30). 

•.ulu  v.  L«-m|..-rt.  ">  T.  273:  Hrinkl.-y  v.  Harkins,  48  T.  225;  Hessv.  Dean, 
06  T.  063  (2  S.  \V.  K,.P.  7 

ITTfa  v.  Mus-nivr.  7'J  T.  is  ,'.)  S.  \V.  Rep.  90). 

:s-hu!t/,-,'  v.  BfcLeai  .   11  >.  \v.  K.  . . 


52  COURTS    AXD   JUDGES.  [§  42. 

action  of  the  parties  in  trying  a  case  without  objection  before  a 
special  judge  is  in  itself  an  agreement  by  them  to  submit  the  case 
to  him  as  special  judge,  and  objections  as  to  the  propriety  and  effi- 
cacy of  his  appointment  cannot  thereafter  be  made.1  Where  the 
record  of  a  judgment  recites  its  rendition  by  a  special  judge  "  se- 
lected by  plaintiff,"  the  judgment  is  void.2  Until  the  contingency 
happens  authorizing  the  appointment  of  a  special  judge  by  the  par- 
ties, the  appointment  of  one  is  void.3 

Where  parties  to  a  suit  announce  ready  and  proceed  to  trial  and 
judgment  before  a  special  judge,  they  cannot  afterwards  impeach 
the  judgment  collaterally  on  the  ground  that  they  did  not  consent 
to  the  appointment  of  the  special  judge.  Where  a  district  judge  is 
disqualified  on  account  of  being  related  to  one  of  the  parties  to  a 
cause  before  him,  and  a  special  judge  is  appointed,  the  subsequent 
death  of  the  party  whose  presence  caused  the  disqualification,  and 
a  discontinuance  entered  as  to  him,  does  not  work  a  disqualification 
of  the  special  judge;  especially  where  no  objection  was  made  by 
any  party  to  the  cause.4 

§  42.  Election  of  a  special  district  judge. 

Whenever  on  the  day  appointed  for  a  term  of  the  district  court, 
or  at  any  time  before  the  expiration  of  the  term,  or  the  completion 
of  all  the  business  of  the  court,  the  judge  thereof  shall  be  absent,  or 
shall  be  unable  or  unwilling  to  hold  the  court,  there  shall  thereby 
be  no  failure  of  the  term,  and  no  failure  to  proceed  with  the  busi- 
ness of  the  court;  but  the  practicing  lawyers  of  the  court  present 
thereat  may  proceed  to  elect  from  among  their  number  a  special 
judge,  who  will  proceed  to  hold  the  court  and  conduct  the  business 
thereof;  he  has  all  the  power  and  authority  of  the  judge  of  the 
court,  during  such  continued  absence  or  inability,  and  until  the  com- 
pletion of  any  business  begun  before  him. 

Such  election  is  by  ballot,  and  each  practicing  lawyer  in  attendance 
is  entitled  to  participate,  and  has  one  vote ;  a  majority  of  the  votes 
of  all  the  practicing  lawyers  present  and  participating  is  necessary 
to  the  election  of  such  special  judge.  The  mode  of  conducting  such 
election  is  as  follows:  The  sheriff  or  constable  makes  proclamation 
at  the  court-house  door  that  the  election  of  a  special  judge  of  the 
court  is  about  to  be  made  by  the  practicing  lawyers  present  thereat ; 
the  clerk  then  makes  a  roll  or  list  of  all  the  practicing  lawyers  pres- 
ent ;  and  such  lawyers  then  proceed  to  organize  and  hold  the  elec- 

i  Tex.  Cent  Ry.  Co.  v.  Rowland,  3  Cir.  App.  158  (22  S.  W.  Rep.  134). 
*Latimer  v.  Logwood,  27  S.  W.  Rep.  960;  Mitchell  v.  Adams,  1  U.  C,  117;  Cas- 
tles v.  Burney,  34  T.  470. 
'Davis  v.  State,  44  T.  523. 
«  Hall  v.  Jankoksky,  29  S.  W.  Rep.  515, 


§  43.]  I:T>  AND  JITKJES.  83 

tion.     Should  the  sheriff  or  constable  and  clerk,  or  cither  of  them, 
fail  or  refuse  to  act,  the  practicing  lawyers  may  nevertheless  |n-u 
•o  organ i/.e  themselves  into  an  electoral  body,  and  appoint  a 
sin-rill1  and  clerk  /'/•<•  t>m.  to  perform  the  duties  of  such  otlicers 
respectively. 

It  is  the  duty  of  the  clerk  to  enter  upon  the  minutes  of  the  court 
<nd  of  the  election  of  such  special  judge,  showing^ 

1.  Tin*  names  of  all  the  practicing  lawyers  present  and  partioipat- 
in  the  election. 

2.  The  fact  that  public  proclamation  was  made  at  the  court-house 
ilo.>r  that  an  election  was  about  to  take  place. 

3.  The  number  of  ballots  polled  at  the  election  and  the  number 
polled  for  eaeh  person,  and  the  result  of  the  election. 

1.  That  the  oath  prescribed  by  law  had  been  duly  administered  to 
the  special  judge. 

The  record  of  the  proceedings,  showing  a  substantial  compliance 
with  the  requirements  of  the  law  in  that  behalf,  is  conclusive  evi- 
dence of  the  election  and  qualification  of  such  special  judge.  Like 
elections  may  be  held  from  time  to  time  during  the  term  of  the 
court  to  supply  the  absence,  failure  or  inability  of  the  judge,  or  of 
any  special  judge,  to  perform  the  duties  of  the  office.1 

Tho  law  also  provides  for  an  adjournment  of  the  court  until  the 
next  regular  term,  where  the  judge  does  not  appear  and  no  special 
judge  is  elected.2 

£  43.  Exchange  of  districts. 

Tho  district  judges  may  exchange  districts  or  hold  courts  for 
each  other  when  they  may  deem  it  expedient,  and  shall  do  so  when 
required  by  law.3  The  statute  provides  that  any  judge  of  the  dis- 
trict court  may  hold  court  for  or  Avith  any  other  district  judge, 
and  the  judges  of  the  several  district  courts  may  exchange  dis- 
tricts whenever  they  may  deem  it  expedient  to  do  so.4 

Where  one  judge  sits  for  another,  the  latter,  on  taking  his  - 

can,  before  the  close  of  the  term,  complete  any  matters  which  the 

former  left  unfinished.*     And  where  several  judges  preside  in  suc- 

>n  at  the  same  term,  all  the  proceedings,  criminal  as  well  as 

civil,  remain  subject  to  the  order  nf  tin-  jinfy,-  jn-> ai<l!n<j  until  the 

of  the  term.'1     The  right  to  exchange  districts  with  and  to 

1R.S.  1071-1077.  Articles  11  in.  ini.i.f  tlu-  i;.-vis,-.l  Statutes  of  1879, provi.lin- 
for  tin-  cU-ction  of  a  county  judge  by  thy  bar,  arc  omitted  from  the  R- 

SMtUt.-s  ,.l    Is'.).-,. 

-  u.  a  mo. 

•Const,  art.  V,  g  11. 

«R&  noa 

rardfl  r.  .Fames,  n  T.  *>•:. 
•State  v.  Woiiuu-k,  17  T 


54  COURTS    AND   JUDGES.  [§  44. 

hold  courts  for  other  district  judges  exists  during  the  entire  term 
of  office  of  the  district  judge ;  it  is  not  confined  to  the  period  of 
the  terms  of  court  in  his  district.1 

g  44.  Procedure  where  a  county  judge  is  disqualified. 

When  a  judge  of  the  county  court  is  disqualified,  the  parties  may, 
by  consent,  appoint  a  proper  person  to  try  the  case.  Where  a 
case  is  pending,  and  the  parties  fail  at  the  first  term  of  the  court  to 
agree  upon  a  special  judge,  it  is  made  the  duty  of  the  judge  to  cer- 
tify to  the  governor  that  he  is  disqualified  to  try  the  case,  and  the 
failure  of  the  parties  to  agree  upon  a  proper  person  to  try  the  same, 
whereupon  the  governor  must  appoint  some  person,  learned  in  the 
law,  to  try  such  case.2 

AVhenever  any  case  or  cases  are  called,  or  pending,  in  which  the 
county  judge,  or  the  special  judge  chosen,  shall  be  a  party,  or  has 
an  interest,  or  has  been  attorney  or  of  counsel,  or  is  otherwise  dis- 
qualified from  sitting  in  and  trying  the  same,  no  transfer  or  removal 
is  necessary,  but  the  parties  or  their  counsel  have  the  right  to  select 
and  agree  upon  an  attorney  of  the  court  for  the  trial  thereof;  and 
if  the  parties  or  their  attorneys  fail  to  select  or  agree  upon  an  attor- 
ney at  or  before  the  time  the  case  is  called  for  trial,  or  if  the  trial  of  the 
case  is  pending,  and  the  county  judge  becomes  unable  to  act,  or  is 
absent,  and  a  special  judge  is  selected  who  is  disqualified  to  proceed 
with  the  trial,  and  the  parties  fail  to  select  or  agree  upon  a  special 
judge  who  is  qualified  at  once,  it  is  the  duty  of  the  county  judge  or 
special  judge  presiding  to  certify  the  fact  to  the  governor  immedi- 
ately, by  telegram,  mail,  or  otherwise,  whereupon  the  governor 
must  appoint  a  special  judge  not  so  disqualified.  The  evidence  of 
such  appointment  may  be  transmitted  by  telegram  or  otherwise. 
The  special  judge,  after  taking  the  oath  of  office  prescribed  by  the 
constitution,  must  proceed  to  the  trial  or  disposition  of  the  case  im- 
mediately, if  the  trial  is  pending,  otherwise  when  called  or  reached, 
as  in  other  cases.3 

A  record  of  the  proceeding  must  be  made  by  the  clerk,  as  directed 
in  section  41,  supra,  when  a  special  district  judge  is  appointed.4 

1  Gilleland  v.  State,  44  T.  356. 

2  Const,  art.  V,  §  16;  R  S.  1130,  1131.     It  seems  that  the  constitutional  provis- 
ion needed  no  legislation  to  give  it  effect.    Parker  County  v.  Jackson,  5  Civ. 
App.  36.     Before  the  amendment  of  the  constitution  in  1891,  cases  in  which  a 
county  judge  was  disqualified  were  transferred  to  the  district  court  of  the  Nime 
county.    The  following  cases  relate  to  practice  in  case  of  a  transfer:  Bates  v. 
Casey,  61  T.  592:  Kahanek  v.  G.,  H.  &  S.  A.  Ry.  Co.,  72  T.  476  (10  S.  W.  Rep.  570); 
Poole  v.  Mueller  Bros.  Furniture  Co.,  80  T.  189  (15  S.  W.  Rep.  1055);  Franco-Texan 
Land  Co.  v.  Howe,  3  Civ.  App.  315  (22  S.  W.  Rep.  766);  G.,  C.  &  S.  F.  Ry.  Co.  v. 
Kerfoot,  3  App.  C.  C.,  §  452;  Baldwin  v.  McMillan,  1  App.  C.  C.,  §  516;  WMtting- 
ton  v.  Butler,  2  App.  C.  C.,  §  790. 

»RS.  1132. 
<R  S.  1132a. 


§  45.]  COURTS   AND   JUDGES. 

By  the  adoption  of  the  Revised  Statutes  of  1805  the  provision  of 
the  Revised  Statutes  of  1S79,  articles  1140, 1141,  for  an  election  by 
the  bar  where  the  county  judge  is  absent,  etc.,  seems  to  have  been 
led.  It  was  held  under  that  provision  that  a  vacancy  in  the 
ottice  of  county  judge,  caused  by  resignation,  does  not  authorize  an 
election  by  the  bar.  And  it  is  held  that  a  vacancy  exists  by  virtue 
of  a  written  resignation,  to  take  effect  instanter,  although  the  resig- 
nation has  not  been  accepted  by  the  proper  authority.1 

S  45.  Disqualification  of  judge  by  interest. 

The  statutes,  in  prescribing  a  disqualification  on  account  of  inter- 
est,  do  not  follow  the  words  of  the  constitution  in  reference  to  the 
judges  of  the  supreme  court  and  the  courts  of  civil  appeals.  The 
language  of  the  constitution  is:  "No  judge  shall  sit  in  any  case 
wherein  he  may  he  interested."  These  are  the  words  used  in  the 
.statute  in  respect  to  district  and  county  judges;  but  in  respect  to 
judges  of  the  supreme  court  and  courts  of  civil  appeals  it  is  enacted 
that  no  judge  "shall  sit  in  any  cause  wherein  he  may  be  interested 
in  t/i>  /<•  to  be  determined.  It  is  accordingly  held  that  interest 

in  a  question  to  be  determined  does  not  disqualify  a  district  judge.2 

A  mere  interest  in  the  question  involved  in  a  suit  pending,  there 
being  no  actual  interest  in  the  subject-matter  of  litigation,  does  not 
disqualify  a  judge  from  sitting  on  the  trial  of  a  cause.3  The  inter- 
est which  d  ^qualifies  a  judge  from  sitting  in  a  case  does  not  signify 
every  bias,  partiality  or  prejudice  which  he  may  entertain  with  ref- 
erence to  the  case,  and  which  may  be  included  in  the  broadest  sense 
in  the  word  "  interest,"  as  contradistinguished  from  its  use  as  indi- 
cating a  pecuniary  or  personal  right  or  privilege,  in  some  way  de- 
pendent upon  the  result  of  the  cause.4  "Xo  judge  shall  sit  in  any 
case  wherein  he  may  be  interested"  is  the  language  used  in  the  con- 
stitution of  1s!.".,  and  in  each  succeeding  one.  Interest  in  the  case 
has  always  l>een  deemed  a  disqualification.1  Whether  or  not  a  per- 
son is  directly  interested  in  the  subject-matter  of  a  suit  depends 
upon  whether  the  judgment  will  directly  affect  him.8 

The  law  enumerates  the  only  instances  in  which  an  interest  not 
-arily  pecuniary  will  disqualify  a  district  judge.  These  are 
where  he  has  been  of  counsel  in  the  cause,  or  where  either  of  the 
parties  may  be  connected  with  him  by  affinity  or  consanguinity 
within  the  third  degree.  By  naming  those  special  cases  where  the 
judge's  feelings  may  he  intcroted,  though  he  may  not  gain  or  lose 

iByars  v.  Crisp.  -,»  A  pp.  Q  ' 

>GrigBbj  v.  May.  M  T.  840    I'.i  S.  \V.  Rep.  843). 

.11  v.  Pmton,M  T.  503. 

* Tayl..r  v.  William-,  -jr.  T.  B8&       . 
•Chamber!  v.  11.,  i  10L 

•Hodde  v.  Susan,  58  T.  m 


56  COURTS   AND   JUDGES.  [§  45. 

by  the  result  of  the  suit,  the  law  doubtless  intended  to  limit  all 
other  oases  of  interest  to  such  as  should  be  of  a  pecuniary  nature. 
He  must,  by  the  judgment  of  the  case,  gain  or  lose  something  the 
value  of  which  may  be  estimated.  Of  the  influence  which  pre- 
viously formed  opinions  upon  questions  involved  in  the  case  may 
have  upon  him,  or  the  moral  effect  which  his  decision  may  have 
upon  another  judge  presiding  in  other  causes,  the  law  takes  no  ac- 
count. It  certainly  will  not  consider  such  a  circumstance  when  it 
does  not  appear  that  the  judge  sought  to  be  disqualified  had  any 
pecuniary  interest  in  the  causes  which  might  be  affected  by  his  de- 
cision.1 The  qualifications  of  a  judge  are  not  to  be  tested  by  the 
rules  which  determine  the  qualifications  of  a  juror.  It  is  presumed 
that  he  can  and  will  divest  himself  of  all  previous  conceptions  he 
ma}7  have  formed  as  to  the  law  or  the  facts,  and  base  his  judgment 
upon  the  case  as  developed  upon  the  trial.  The  fact  that  a  judge 
was  formerly  a  member  of  a  city  council  which  passed  upon  a  dis- 
pute between  plaintiff  and  a  corporation  complained  of  for  main- 
taining a  nuisance  does  not  disqualify  him  from  sitting  in  a  cause 
wherein  plaintiff  applies  for  an  injunction  against  the  maintenance 
of  the  alleged  nuisance  by  the  corporation.3 

A  director  of  a  national  bank  is  required  to  own  stock  in  the 
bank,  and  he  is  therefore  disqualified  as  a  judge  to  try  a  case  to 
which  the  bank  is  a  party.3 

A  case  on  appeal  was  tried  before  the  county  judge.  An  attor- 
ney for  the  plaintiff,  who  was  the  brother  of  the  judge,  was  to  re- 
ceive for  his  services  a  contingent  fee  equal  to  one-half  of  the  sum 
to  be  recovered.  The  interest  of  the  attorney  was  unknown  to  the 
judge.  In  a  suit  by  injunction  to  restrain  the  judgment  on  the 
ground  that  it  was  void,  it  was  held  that,  the  attorney  not  being  a 
party  to  the  suit,  the  judge  was  not  disqualified.4 

A  judgment  rendered  on  a  note  made  payable  to  a  firm  of  which 
the  judge  who  renders  the  judgment  is  a  member,  the  note  having 
been  assigned  by  the  firm  for  the  purpose  of  securing  a  debt,  is 
void.5 

A  judge  who  is  in  possession  of  the  land  involved  in  a  suit  of  tres- 
pass to  try  title,  claiming  adversely  to  the  plaintiffs  therein,  is  dis- 
qualified from  trying  the  case,  although  he  is  not  a  party  to  the 
suit  and  his  own  title  is  not  directly  in  issue.  Where  the  interest 
of  the  judge  in  the  subject-matter  of  the  suit  was  not  discovered 
by  plaintiffs  until  after  trial  begun,  their  failure  to  make  him  a 

iKing  v.  Sapp,  66  T.  519  (2  S.  W,  Rep.  573);  Waters-Pierce  Oil  Co.  v.  Cook, 
6  Civ.  App.  573  (26  S.  W.  Rep.  96). 

2  Waters-Pierce  Oil  Co.  v.  Cook,  6  Civ.  App.  573  (26  S.  W.  Rep.  96). 

3  Williams  v.  City  Nat.  Bank  of  Quanah,  27  S.  W.  Rep.  147. 

4  Winston  v.  Masterson,  87  T.  200  (27  S.  W.  Rep.  691). 
»Templeton  v.  Giddings,  12  S.  W.  Rep.  851. 


§  45.]  COURTS   AXD  JUDGES. 

partv  to  the  suit  would  not  change  the  rule;  and  such  disqualifica- 
tion beim:  made  to  appear  in  a  motion  for  new  trial,  the  judgment, 
although  correctly  rendered  on  the  merits  of  the  case,  was  reversed 
and  the  cause  remanded.1 

A  judge  owning  property  subject  to  city  taxes  is  disqualified  t<> 
render  a  judgment  dissolving  the  city  corporation  and  enjoining 
•  •ol  lection  of  such  taxes.* 

If  it  could  ho  admitted  that  a  judge  cannot  sit  in  a  suit  of  another 
person  for  debt  against  a  debtor  who  at  the  same  time  was  owing 
the  judi^e,  such  disqualification  would  cease  to  exist  upon  the  pay- 
ment of  the  debt  to  the  judge,  or  when  the  debt  was  transferred 
without  i n  •  >urse.  The  fact  that  the  payment  or  transfer  was  made 
for  the  purpose  of  removing  the  disability  would  not  affect  the  re- 
sult. A  failing  corporation  was  in  the  hands  of  receivers.  The  dis- 
trict judge  had  owned  stock  in  it  and  was  an  officer.  Before  the  trial 
of  a  suit  against  the  corporation  was  had  the  judge  had  disposed  of 
all  stock,  and  had  fully  severed  connection  with  its  management, 
and  it  was  held  that  the  possibility  of  a  suit  against  him  for  acts 
u/t/-<t  t-'/'t-s  would  not  disqualify  him  as  a  judge.3 

Where  a  case  was  appealed  to  the  county  court,  the  county  judge 
was  not  disqualified  to  try  it  because,  as  a  justice  of  the  peace,  he 
had  tried  it  once  already,  nor  because  he  was  interested  in  the  ca^e 
to  the  extent  of  his  fees.4  A  county  judge  who  is  receiver  for  the 
plaintiff  in  a  suit  pending  before  him  is  thereby  disqualified  to  try 
tin?  cause.5 

In  a  suit  on  a  bond  executed  under  the  provisions  of  the  statute 
for  the  hire  of  a  county  convict,  the  county  judge  has  no  such  in- 
terest as  will  disqualify  him.*  It  is  held,  also,  that  the  county 
judire  is  competent  to  try  a  suit  brought  by  him,  for  the  use  of  the 
c«uinty,  on  a  liquor-dealer's  bond.  He  is  only  a  nominal  party.7 

» Casey  v.  Kinsey,  5  Civ.  App.  8  (23  a  W.  Rep.  818).    To  constitute  such  an  in- 

;is  will  disqualify  a  judge,  it  is  not  necessary  that  he  should  be  a  party. 
It  is  MiihVu-nt  if  he  is  in  any  wise  interested  in  tht«  subject-matter.  cj:j  Ala.  in.) 
The  provision  of  the  law  should  not  receive  a  technical  or  strict  construction, 
but  rather  one  that  in  broad  and  liberal.  The  court  ought  not  to  be  a-tute  t«> 
lined  and  subtle  distinctions  to  save  a  case  from  the  operation  of  the 
maxim,  when  the  principle  it  embodies  bespeaks  the  propriety  of  it->  applica- 
tion. The  immediate  rights  of  the  litigants  an-  not  the  only  objects  of  tin-  nil.'. 
A  Hound  public  policy,  which  in  interested  in  preserving  every  tribunal  ap- 
pointed by  law  from  discredit,  i  in  jR-riously  demands  its  • 
115,822. 

-  \V.  t      !  v.  State.  3  Civ.  App,  17  (28  a  W,  Rep.  823). 

»  Nichols,  ,11  v.  Scliowalter.  SJ  T.  99  (18  S.  \V. 

«Beckham  v.  Rice.  1  Civ,  App,  281  (21  &  W.  K  i  >'•»);  St.  Louis,  A.  &  T.  Ry. 
Co.  v.  Holden.  :j  A  pp.  C,  C,,  g  :j-':j. 

IIMIICO  Texan  Land  Co.  v.  Howe,  8  Civ.  App.  315  (22  a  W.  Rep.  760). 

•Peters  v.  Duke,  1  App.  C.  C.,  js 

:lini'iv  \    j;  .-can,  ;»  App.  C.  C,  i  ;'0'J.     Where  the  damages  for  land  taken  fir 


58  COURTS   AND   JUDGES.  [§  46. 

It  seems  that  a  county  judge  is  not  disqualified  to  pass  upon  the 
acts  of  an  administrator  by  reason  of  the  fact  that  he  is  surety  upon 
the  bond  of  such  person  as  temporary  administrator.  The  decision 
of  this  point,  however,  was  not  deemed  necessary  to  a  disposition 
of  the  case.1 

£  46.  Disqualification  of  judge  by  relationship. 

The  common-law  rule  of  computing  degrees  of  consanguinity  is 
the  rule  adopted  in  this  state.  The  mode  of  computing  degrees  of 
collateral  consanguinity  at  common  law  is  to  discover  the  common 
ancestor,  to  begin  with  him  to  reckon  downwards,  and  the  degree 
the  two  persons,  or  the  more  remote  of  them,  is  distant  from  the 
ancestor,  is  the  degree  of  kindred  subsisting  between  them.  Thus, 
two  brothers  are  related  to  each  other  in  the  first  degree,  because 
from  the  father  each  one  is  one  degree.  An  uncle  and  a  nephew 
are  related  to  each  other  in  the  second  degree,  because  the  nephew 
is  two  degrees  distant  from  the  common  ancestor.  In  a  case  in 
which  the  judge  and  the  wife  of  one  of  the  defendants  were  cous- 
ins, their  fathers  being  brothers  of  the  whole  blood,  the  judge  was 
held  disqualified.2 

A  surety  upon  a  claimant's  bond,  in  proceedings  for  the  trial  of 
the  right  of  property,  is  in  legal  contemplation  such  a  party  to  the 
cause  as  that  >his  relationship,  within  the  prohibited  degrees,  to  the 
magistrate  before  whom  the  cause  is  pending,  will  disqualify  the  lat- 
ter from  trying  the  cause.  A  narrow  or  contracted  construction  of 
the  word  party  as  used  in  the  law,  which  would  confine  it  to  the 
very  persons  named  on  the  docket  as  such,  and  would  exclude  such 
as  stand  in  precisely  the  same  relation,  would  often  defeat  the  end 
had  in  view,  of  having  justice  administered  free  from  the  bias  and 
influence  produced  by  the  interest  held  in  the  cause  by  the  judge  or 
his  relatives.  A  party  to  an  action  is  defined  to  be  one  who  is  di- 
rectly interested  in  the  subject-matter  in  issue,  who  has  a  right  to 
make  defense,  control  the  proceedings,  or  appeal  from  the  judg- 
ment.3 

a  road  were  paid  to  the  wrong  person, —  one  who  was  not  the  owner, —  and  the 
county  brought  suit  to  recover  the  money  back,  the  county  judge,  who  was  the 
presiding  officer  of  the  commissioners'  court,  but  acted  only  in  his  official 
capacity  in  the  proceedings  for  laying  out  the  road,  was  held  competent  to  try 
the  case.  Clark  v.  Taylor  County,  3  App.  C.  C..  §  201.  And  in  a  suit  on  a  con- 
tract of  subscription  to  recover  a  balance  due,  the  county  judge,  who  was  also 
a  subscriber,  but  not  liable  with  the  defendant  in  the  case,  either  jointly  or  sev- 
erally, was  held  not  disqualified  to  try  the  case.  Dicks  v.  Austin  College,  1  App. 
C.  C.,  §  1068. 

» Halbert  v.  Martin,  30  S.  W.  Rep.  388. 

*  Tyler  Tap  R.  Co.  v.  Overton,  1  App.  C.  C.,  §  533.  See  this  case  for  definitions 
of  lineal  and  collateral  consanguinity,  and  the  rules  of  computation  by  the  com- 
mon and  canon  law  and  by  the  civil  law. 

SHoide  v.  Susan,  53  T.  389. 


§  47.]  COURTS   AND   JUDGES.  59 

Tlio  word  pa ,-f>/,  when  used  in  connection  with  suits  or  actions,  is 
a  technical  word,  the  meaning'  of  which  is  as  certainly  fixed  as  that 
of  any  word  in  the  language.     It  means  the  person  by  or  against 
whom  a  suit  is  brought,  whether  at  law  or  in  equity.     All  others 
who  may  be  affected  by  the  suit  indirectly  or  consequentially  are 
us  intcre>ted,  but  not  parties.     Interest  of  a  judge  in  a  matter 
in  litigation  disqualifies  him,  but  his  disqualification  on  account  of 
other  persons  may  have  under  the  terms  of  the  con- 
stitution arises  only  when  such  persons  are  related  to  him  within 
ilx-d  degrees,  and  are  parties.1    "When,  in  a  suit  pending, 
-ister-in-law  of  the  judge  of  the  court  is  interested  in  an  estate, 
which  is  involved  in  the  action  by  the  administrator  being  a  party, 
the  judge  is  disqualified  from  trying  the  cause,  though  the  name 
of  the  sister-in-law  be  not  mentioned  in  the  pleadings.     Such  a 
judge  can  make  no  order  dismissing  the  suit  as  to  the  estate  and 
thus  qualify  himself  to  sit  and  adjudicate  upon  the  rights  of  the  re- 
maining parties.2 

£'  47.  Disqualification  of  judge  where  he  has  acted  as  counsel. 

The  fact  that  a  judge  had  at  some  former  period  been  connected 
as  counsel  with  matters  in  litigation  before  him,  or  that  he  had 
acted  as  attorney  for  a  part  owner  of  a  survey  of  land  in  litigation 
in  the  cause,  but  who  was  not  interested  in  the  suit  pending,  does 
not  disqualify  him  from  sitting  on  the  trial  of  the  cause.5  It  is  not 
sullieient  that  he  had  been  counsel  in  other  cases  involving  the  same 
land  title  as  the  one  in  question  before  him.4  The  constitutional 
provision  does  not  limit  his  disqualification  to  a  case  pending  at  the 
time  his  services  as  counsel  were  invoked.  If  an  attorney  has  been 
consulted  as  such,  and  has  given  advice  as  to  a  matter  in  dispute, 
which  afterwards  results  in  a  suit  between  the  parties  at  variance, 
he  cannot  sit  as  a  judge  in  that  case,  even  though  he  charged  no 

»  Winston  v.  Masterson,  87  T.  200  (27  S.  W.  Rep.  70S). 

2  Gains  v.  Barr.  60  T.  676.    If,  in  a  suit  by  the  husband,  the  fund  sought  to  be 

red  would  be  community  property,  the  wife,  though  nominally  not  a  jurt y 

to  tin-  action,  is  such  in  legal  effect,  and  if  she  isa  sister  of  the  wife  of  the  judge 

i>f  tin-  cmirt  in  which  suit  is  pending,  she  and  the  judge  are  so  related  l»v  atlin 

ity  as  to  disqualify  him  from  presiding  in  the  trial  of  the  case.  Jordan  v.  Moore, 

In  a  suit  against  the   husliand  of  a  sister  to  the  wife  of  a  -i 
.  if  the  defendant  represents  a  ri^ht  claimed  hv  himself  and  wife  in 
munity.  an  1  if  tli.-  judgment  to  be  rendered  against  the  hushand  would  affect 
the  community  estate  of  himself  and  wifeeven  to  the  extent  of  costs  then  the 
wife  iiiu-t  1..-  considered  a  party  to  the  suit,  and  the  .r  :   -•jiialitied  from 

trying  the  cause.     Schult/.  v.  .M--I..  -  In  a  suit  l.y 

a  c.i]-|,,.rition   the  judge  is  not  dist|ualiti' -1  l-y  reason   of  th-   f:i<-t  that  a 
holder  in  the  ror|toration    is   hi^   l>r<>ther-iii-law.     Le\vis  v.  Hillslxiro  Roller  Mill 
..;  s.  \\.  i;.  p.  838;  \Vi~-  Ooan^j  Cotl  Ca  r.  Carter  Bros.,  3  App.  C.  C.,  g  300. 

tssciK-k  v.  Muu'li-s.  :,.-,  T.  IfU. 
*  Taylor  v.  Williams,  28  T.5S3. 


60  COURTS  AND  JUDGES.  [§  47. 

fee  for  his  advice.  The  object  of  the  provision  was  to  secure  to  lit- 
igants an  impartial  judge,  one  who  had  not  previously  formed  an 
opinion  or  reached  a  conclusion  in  regard  to  the  subject-matter  of 
the  particular  case;  and  additional  force  should  be  given  to  that 
construction  when  the  advice  given  and  conclusion  formed  concern 
the  identical  parties  who  are  afterwards  litigants.1 

That  an  attorney  was  of  counsel  for  a  defendant  in  a  criminal 
case  does  not  of  itself  disqualify  him  as  judge  from  trying  a  case 
arising  from  the  forfeiture  by  the  accused  of  his  bail  bond  for  the 
offense.  Jt  not  appearing  that  the  attorney  was  ever  spoken  to 
by  the  accused  about  the  bond,  or  that  he  ever  spoke  to  the  ac-. 
cused  about  it,  and  there  being  no  testimony  showing  that  any 
consultation  among  lawyers,  participated  in  by  the  attorney,  was 
held  at  the  instance  of  the  accused,  the  mere  fact  that  the  at- 
torney in  conversation  with  other  attorneys  expressed  an  opinion 
upon  the  validity  of  the  bail  bond  would  not  disqualify  the  attor- 
ney, afterwards  elected  district  judge,  from  trying  the  case  made 
by  the  forfeiture  of  the  bond.3 

1  Slaven  v.  Wheeler,  58  T.  23, 

SHobbe  v,  Campbell,  79  T.  360  (15  S,  W.  Rep.  282),  The  plaintiffs  in  attach- 
ment  took  advice  of  a  lawyer  as  to  whether  a  town  lot  was  subject  to  levy, 
when  controlled  by  the  defendant  in  attachment,  alleged  to  be  the  owner,  al- 
though he  had  executed  a  deed  to  another,  Upon  the  advice  the  lot  was  levied 
upon  and  sold  under  judgment  of  foreclosure.  Plaintiffs  in  attachment  bought 
the  lot  and  instituted  suit  for  its  recovery,  The  lawyer  consulted  had  become 
district  judge,  and  the  case  was  tried  before  him  and  the  plaintiffs  recovered. 
In  a  subsequent  action  for  the  property,  the  validity  of  the  judgment  being  in 
issue,  it  was  held  that  the  judge  was  not  disqualified  in  the  ejectment  case  by 
reason  of  his  advice  in  the  attachment  suit,  Cullen  v,  Drane,  82  T.  484  (18  S.  W. 
Rep,  590).  A  law  firm  was  consulted  by  and  acted  for  the  citizens  in  obtaining 
and  executing  an  order  for  an  election  for  the  purpose  of  incorporating  under 
the  general  incorporation  Jaw,  The  town  was  incorporated.  One  member  of 
the  law  firm  became  the  district  judge.  An  attack  by  quo  wyrranto  proceed- 
ings was  made  upon  the  legality  of  the  incorporation,  The  district  judge  mado 
the  order  permitting  the  petition  to  be  filed,  but  entered  his  disqualification 
before  trial,  A  special  judge  was  elected,  who  dismissed  the  proceedings  upon 
the  ground  that  the  order  nisi  was  a  judicial  act  which  the  judge  granting  it 
could  not  make,  On  appeal,  it  was  held  (1)  that  the  judge  of  the  district  court 
was  disqualified  by  reason  of  his  service  in  conducting  the  election,  (2)  The  order 
granting  leave  to  file  the  petition  was  a  judicial  act,  and  the  judge,  being  dis- 
qualified to  try  the  case,  could  not  make  the  order,  and  the  proceedings  were 
properly  dismissed.  State  v,  Burks,  83  T.  584  (18  S,  W,  Rep,  602).  A  lawyer 
became  a  member  of  a  law  firm.  In  a  suit  in  which  the  old  firm  was  retained, 
by  oversight  the  name  of  the  new  member  was  signed  to  oroas-interrogatories. 
He  afterward  became  district  judge,  This  did  not  disqualify  him  from  try- 
ing the  cause.  Ft.  W,  <Sf  D,  C,  Ry,  Co,  v,  Mackney,  83  T,  410  (18  S.  W.  Rep. 
049).  A  wife  sued  her  husband  for  divorce,  alleging  cruel  treatment,  etc,,  which 
suit  was  dismissed,  Afterwards  the  husband  sued  for  divorce  on  the  ground  of 
abandonment,  and  obtained  a  decree  of  divorce,  The  judge  who  presided  on 
the  trial  of  the  second  suit  was  the  attorney  of  the  husband  in  the  first  suit. 
The  husband  defended  in  the  first  suit  on  the  ground  that  he  was  not  guilty  of 


§3  4>,  40.]  OOCET8   AND   JUDGES.  Cl 

£  48,  How  disqualification  of  judge  determined. 

Much  >hnuld  ho  left  to  the  discretion  of  the  judge  in  determining 
his  own  disqualification  to  try  a  cause;  and  his  decision  on  that 
question  will  only  be  reversed  for  manifest  error.1  An  issue  as  to 
the  disqualification  of  a  judge  to  sit  as  such  in  a  cause  pending  in 
his  court  should  be  tried  and  determined  by  him,  and  the  facts 
in  evidence  on  the  issue  should  be  incorporated  in  the  record  on 
appeal.  The  statemonts  of  the  judge  on  the  trial  of  such  an  issue 
should  be  made  under  oath,  unless  the  same  be  waived  by  the  par- 
it  igant.  On  appeal  from  the  judgment  of  the  court,  on  an 
involving  the  disqualification  of  the  judge,  his  statement  ap- 
pended to  a  bill  of  exceptions,  relating  to  facts  occurring  before  the 
institution  of  the  suit,  cannot  be  regarded.3 

iisqualifying  a  judge  must  be  established  by  testimony.' 
A  defendant  set  up  ore  tenus  the  disqualification  of  the  presiding 
•',  on  account  of  the  alleged  interest  of  the  judge's  brother  in 
the  suit,  and  took  his  exception  to  the  action  of  the  court  thereon, 
which  recited  that  "the  objection  was  overruled  without  hearing 
any  evidence;"  the  record  disclosed  on  this  point  nothing  further, 
and  it  was  held  that  it  could  not  be  presumed  that  evidence  was 
offered  to  sustain  the  objection.  On  the  contrary,  the  presump- 
tion was  that  no  evidence  was  offered.4 

?'  49.  Acts  of  disqualified  judge. 

"While  the  law  was  in  force  authorizing  a  transfer  to  the  district 
court  of  cases  pending  in  the  county  court  in  which  the  judge  was 
disqualified,  it  was  held  that  the  county  judge  had  no  authority  to 
make  any  order  in  the  cause  except  one  relating  to  his  own  qualifi- 
cation ;  but,  having  determined  this  question  and  made  an  order  of 
transfer,  he  had  the  power  to  revoke  the  order,  and  having  revoked 
it.  the  case  remained  pending  in  his  court,  and  he,  being  disquali- 
fied, had  no  power  to  try  it.*  A  county  judge,  who,  by  reason  of 
his  having  been  counsel  in  a  case  tried  before  a  justice  of  the  peace, 
^qualified  from  sitting  in  the  trial  of  the  case,  cannot,  for  the 

cruel  treatment,  and  that  hence  her  abandonment  was  not  justified.  After- 
wards the  wife  sued  in  this  case  for  a  partition  of  the  community  property, 
which  was  also  sought  in  the  first  suit,  though  not  in  the  second,  which  resulted 
in  a  divorce*  It  was  held  that  the  judge  was  disqualified  to  render  judgment 
in  the  second  suit,  and  that  the  decree  therein  rendered  was  not  conclusive  be- 
tween the  parties.  A  charge  recognizing  the  validity  of  the  decree,  as  estab- 
li-hing  the  abandonment  by  the  wife  of  her  husband  without  cause,  was  held 
error.  Kewcome  v,  Light,  58  T.  141. 

i  Childress  v.  Grim,  57  T,  58, 

»  Slaven  v.  Wheeler,  58  T,  28. 

•  Henderson  v,  Lindley,  73  T.  185  (12  &  W.  Rep,  070). 

«  Stark  v.  Whitman,  58  T.  875. 

•Poole  v.  Mueller  Bxo*  Furniture  Co,,  80  T.  180  (15  S,  W.  Rep,  1055), 


62  COURTS   AND   JUDGES.  [§  50. 

same  reason,  grant  a  certiorari  to  remove  the  cause  to  the  county 
court.1  So  also  where  he  is  disqualified  by  relationship  with  either 
of  the  parties.  A  certiorari  thus  granted  is  a  void  act.  The  dis- 
qualification extends  to  all  such  judicial  orders,  judgments  or  fiats 
as  involve  the  exercise  of  the  power  which  is  conferred  upon  the 
judge  to  hear  and  determine  upon  the  rights  of  the  parties  which 
may  be  involved  in  the  case  which  shall  be  presented  for  his  action. 
It  extends  to  all  remedial  writs.  And  it  is  held  that  where  the 
certiorari  is  granted  and  the  case  docketed,  the  judge  has  no  power 
to  dismiss  it;  that  the  only  thing  he  could  do  would  be  to  transfer 
it  to  the  district  court.2 

Where  a  judge  is  disqualified  by  reason  of  his  relationship  to  one 
of  the  parties,  he  has  no  power  to  enter  an  order  of  discontinuance 
as  to  such  party.3  So  where  an  attorney  acted  for  citizens  in  call- 
ing an  election  for  incorporating  a  city,  an  order  afterwards  made 
by  him  as  district  judge  permitting  a  petition  for  an  information  in 
the  nature  of  quo  warranto  to  be  filed,  for  the  purpose  of  testing 
the  legality  of  the  proceedings,  was  void.4  An  order  of  a  disquali- 
fied judge  dismissing  a  suit  is  void.5 

A  'judgment  rendered  by  a  disqualified  judge  will  be  reversed, 
solely  on  the  ground  that  he  was  disqualified;  it  is  not  material 
that  the  judgment  was  correct.6 

§  50.  Special  judges;  their  qualifications. 

Where  a  special  judge  is  appointed  by  the  parties  or  elected  by 
the  lawyers  present,  he  must  be  an  attorney  of  the  court ;  the  gov- 
ernor is  required  to  appoint  a  special  judge  who  is  not  disqualified.7 

That  a  special  district  judge  appointed  to  try  a  cause  is  a  mem- 
bor  of  the  legislature  is  no  objection  to  his  competency  as  judge. 
The  objection  to  such  special  judge,  made  after  his  qualification  as 
such,  does  not  raise  the  question  whether  the  office  of  special  judge 
is  one  of  emolument,  or  whether  the  two  offices  are  incompatible.8 
A  decree  of  divorce  is  not  invalidated  because  rendered  by  a  spe- 
cial district  judge,  who,  at  the  time  the  trial  began,  was  the  county 
judge  of  the  county.  Even  if  he  be  such  an  officer  as  is  forbidden 
under  the  constitution  to  hold  another  office,  the  acceptance  and 
discharge  of  the  duties  of  another  office  would  operate  an  aban- 
donment of  the  office  to  which  he  had  formerly  qualified.9 

-  i  Baldwin  v.  McMillan,  1  App.  C.  C.,  §  515. 

-  'Fellrath  v-  Gilder,  1  App.  C.  O,  §  1030. 

-  *  Gaing  v.  Barr,  60  1.  676. 

4  State  v.  Burks,  82  T.  584  (18  S.  W.  Rep.  662). 

*  Garrett  v.  Gaines,  6  T.  435. 

«  Casey  v.  Kinsey,  5  Civ.  App.  3  (23  S.  W.  Rep.  818). 
7  R.&  1069,  1071, 1132.     . 
«Roundtree  v.  Gilroy,  57  T.  176. 

•  Abup  ^  Jordan,  69  T.  300  (6  &  W.  Rep.  831).    The  provision  of  the  constitu- 


§  51.]  :js    AM)  JCDGES.  63 

Powers  of  special  judge. 

"Where  the  judge  is  disqualified  from  trying  any  case,  the  special 
jud«:e  appointed  by  the  governor  or  by  the  parties  "shall  proceed 
to  the  trial  or  disposition  of  such  case  immediately,  if  the  trial  is 
pending,  otherwise  when  called  or  reached,  as  in  other  ca.^ 

•:i  a  social  judge  is  elected  by  the  bar  on  account  of  the  ab- 
sence or  disability  of  the  judge,  such  special  judge  "shall  proceed 
•Id  said  court  and  conduct  the  business  thereof,  and  shall  have 
all  the  power  and  authority  of  the  judge  of  said  court,  during  such 
continued  absence  or  inability,  and  until  the  completion  of  any  busi- 
B  begun  before  such  special  judge.' 

A  special  district  judge,  who  qualified  under  the  appointment, 
has  authority  to  hear  and  determine  not  only  the  suit  pending  in 
which  the  appointment  was  made,  but  also  any  litigation  between 
the  same  parties  growing  out  of  that  suit;  e,  g.,  he  can  hear  an  in- 
junction suit  to  vacate  the  judgment  and  application  after  the  term 
for  a  new  trial  in  the  case.*  One  specially  appointed  to  try  a  ca>o 
cannot  consolidate  it  with  another  case  and  try  both.4  The  regular 
successor  of  a  disqualified  judge  may  try  the  cause  in  which  orders 
have  been  made  by  a  special  judge;  and  when  a  special  judge,  who 
is  appointed  on  account  of  the  absence  of  the  regular  judge,  has 
begun  a  trial,  it  may  be  completed  by  the  regular  judge  when  he 
returns.* 

tion  is,  that  "  no  person  shall  hold  or  exercise,  at  the  same  time,  more  than  one 
civil  office  of  emolument  except  that  of  justice  of  the  peace,  county  commis- 
sioner, notary  public,  and  postmaster,  unless  otherwise  specially  provided  herein." 
Const  1876,  art  XVI,  ?!  40.  And  the  rule  adopted  is,  that  where  a  person  in 
office  accepts  another  office  incompatible  with  the  first,  and  qualifies,  he  thereby 
resigns  his  former  office.  State  v.  Brinkerhoff,  66  T.  45  (17  S.  W.  Rep.  109),  and 
cases  cited.  Suit  was  against  several  persons  alleged  to  be  partners  in  the  bank- 
ing business,  under  the  firm  name  of  the  Wharton  Bank.  A  safe  belonging  to 
the  bank  was  attached,  but  prior  thereto  some  of  the  partners  had  made  an 
assignment  of  all  of  the  bank  property,  including  the  safe.  The  attorney  who 
drew  the  assignment,  advised  the  assignee,  and  as  creditor  of  the  bank  had  ac- 
cepted under  the  assignment,  was  not  thereby  disqualified  to  sit  as  special 
judge  to  try  the  case,  because  the  validity  of  the  assignment  was  not  involved 
in  the  action  as  brought,  nor  the  title  of  the  assignee  or  the  rights  of  persons 
claiming  under  the  deed  affected  by  it,  none  of  them  having  been  made  partii  .-. 
Kemp  v.  Wharton  County  Bank,  4  Civ.  App.  648  (23  a  W.  Rep.  916). 

1R.S.  1069,  1132. 

2R.&  1071. 

1  Harris  v.  Musgrave,  72  T.  18  (9  S.  W.  Rep.  90). 

«Tex,  Mex.  Ry.  Co.  v.  Cahill,  23  a  W.  Rep.  282. 

4  Coles  v.  Thompson,  7  S.  W.  Rep.  579  (27  &  W.  Rep.  46;  29  &  W.  Rep.  958). 
While  a  special  judge  was  engaged  in  the  court  room  in  the  trial  of  a  case  in 
which  the  district  judge  was  disqualified,  the  district  judge,  without  objection 
of  any  of  the  parties,  tried  another  case  in  another  room  in  the  court-house.  In 
tin-  latt.-r  caso  on  appeal  it  was  held  that  objection  came  too  Into  wlu-n  made 
:.0'  i-urty  atu-r  the  trial  l»ad  ended.  Such  objection  dots  not  go  to  tho 
jurisdiction.  City  of  CoXs.cuna  v.  Kcrr,  70  T.  207  0-  &  W.  IJt-p.  Ur,\>.  A  special 


6±  COURTS   AND  JUDGES.  [§  52,  53. 

§  62.  Adjournment  of  term  where  the  judge  fails  to  appear. 

Should  the  judge  of  any  district  court  not  appear  at  the  time  ap- 
pointed for  holding  the  same,  and  should  no  election  of  a  special 
judge  be  had,  the  sheriff  of  the  county,  or  in  his  default  any  con- 
stable of  the  county,  is  required  to  adjourn  the  court  from  day  to 
day  for  three  days;  and  if  the  judge  should  not  appear  on  the  morn- 
ing of  the  fourth  day,  and  should  no  special  judge  have  been  elected, 
the  sheriff  or  constable,  as  the  case  may  be,  must  adjourn  the  court 
until  the  next  regular  term  thereof.1  The  same  provision  is  made 
where  the  county  judge  fails  to  appear,  with  this  difference:  If  the 
county  judge  fails  to  appear  on  the  fourth  day,  instead  of  on  the 
morning  of  the  fourth  day,  an  adjournment  shall  be  had  to  the  next 
regular  term.2  But  it  is  held  that  the  word  "  morning "  includes 
the  period  between  sunrise  and  12  o'clock  M. ;  and  if  the  sheriff  of 
a  county  fails  to  adjourn  the  court  on  the  morning  of  the  fourth 
day  of  the  term,  when  the  district  juflge  had  not  appeared  during 
the  term  until  that  time,  and  the  judge  should  appear  at  any  time 
before  12  o'clock  M.  of  the  fourth  day  and  proceed  to  hold  the 
term,  a  previous  election  of  a  special  judge  on  the  morning  of  that 
day  is  inoperative  to  invest  him  with  authority  to  preside  as  judge 
for  the  term.3 

§  53.  Terms  of  the  district  court. 

The  district  judge  is  required  to  hold  the  regular  terms  of  his 
court  at  the  county  seat  of  each  county  in  his  district  at  least  twice 
in  each  year,  in  such  manner  as  may  be  prescribed  by  law ;  and  he 
must  hold  such  special  terms  as  may  be  required  by  law.  The  legis- 
lature has  the  power,  by  general  or  special  laws,  to  authorize  the 
holding  of  special  terms  of  the  court,  or  the  holding  of  more  than 
two  terms  in  any  county,  for  the  dispatch  of  business;  and  is  re- 
quired to  provide  for  the  holding  of  district  courts  when  the  judge 
thereof  is  absent,  or  is  from  any  cause  disabled  or  disqualified  from 
presiding.4 

Whenever  any  unorganized  county  has  become  organized,  and 
there  is  no  time  fixed  by  law  for  holding  court  in  such  county,  the 
district  judge  in  whose  judicial  district  such  county  is  situated  shall 
fix  times  to  hold  at  least  two  terms  of  court  each  year  in  such 
county  or  counties  by  a  written  declaration,  to  be  forwarded  by  him 

district  judge  who  after  trying  a  cause  sets  aside  the  judgment  rendered  by 
him,  and  from  doubts  regarding  the  disqualification  of  the  district  judge  refuses 
to  proceed  with  the  cause,  may  be  compelled  by  the  supreme  court  to  proceed 
with  the  trial,  so  long  as  he  holds  the  special  appointment.  Schultze  v.  Me- 
Leary,  73  T.  92  (11  S.  W,  Rep,  834). 

»  R  8.  1119. 

*RS.  1169. 

«Tex.  Mex.  Ry,  Co,  v.  Douglass,  09  T.  604  (7  8.  W.  Rep.  77), 

<  Const,  art.  V,  §  7;  R  S.  1111, 


;.'  54.]  V.M)  JTIKJES.  65 


to  the  di>trict  clerk  of  the  proper  county,  and  by  him  spread  upon 

tin-  minute  ..f  tin-  district   court.     When  the  times  are  so  tixed 

tln-y  shall  not  he  changed  except  by  an  act  of  the  legislature.1 

When  a  court  is  organized  and  opened  for  a  regular  term,  the 

continues  until  it  is  ended  by  order  of  final  adjournment,  or 

until  the  expiration  of  the  time  fixed  by  law  for  its  continuance. 

The  sessions  or  sittings  of  the  court  during  the  term  are  entirely 

within  the  control  of  the  court;  its  orders  in  respect  thereto  are  in- 

tended  tor  its  own  convenience  and  the  convenience  of  parties  inter- 

i  in  its  proceedings.2     When  the  statute  allows  a  term  of  the 

district  court  to  remain  open  until  the  business  of  the  term  has 

disposed  of,  it  is  for  the  district  judge  to  determine  when  the 

term  shall  be  dosed;  but  having  determined  and  adjourned  for  the 

term,  he  cannot  by  order  made  in  vacation  reopen  the  court.3 

1.  Special  terms  of  the  district  court. 

Whenever  it  becomes  necessary,  in  the  opinion  of  the  district 
jud^e  of  any  district,  on  account  of  the  accumulation  of  business,  a 
speeial  term  or  terms  of  the  district  court  may  be  held  in  any  county 
in  his  district.  Such  special  term  is  appointed  by  an  order  entered 
upon  the  minutes  of  a  regular  term  of  the  court  held  in  the  proper 
county,  which  order  shall  appoint  the  time  for  the  holding  of  the 
special  term  at  a  day  not  less  than  thirty  days  after  the  adjourn- 
ment of  the  regular  term  at  which  the  order  is  entered,  and  the 
order  miM  >tate  the  length  of  time  deemed  necessary  for  the  holding 
of  the  special  term.  When  the  order  is  entered,  the  clerk  issin 
notices  containing  a  copy  of  the  order,  and  also  the  name,  style  and 
number  of  each  case  appearing  upon  the  docket  which  will  be  be- 
the  court  for  disposition  at  the  special  term,  which  notice  and 
copies  shall  be  under  the  seal  of  the  court.  The  sheriff  shall  post 
true  copies  of  said  notice  at  six  public  places  in  the  county,  one  of 
which  shall  be  at  the  court-house  door,  and  shall  return  the  original 
notice  to  the  special  term,  with  his  return  thereon,  stating  the  man- 
ner in  which  he  has  executed  the  same,  which  notice  and  return 
*hall  be  entered  in  full  in  the  minutes  of  the  court.  No  new  case 
can  \>o  brought  to  a  special  term.  Juries  are  to  be  summoned  the 
•  as  at  regular  terms,  and  all  proceedings  are  to  have  the  same 
and  etl'ect  a^  those  of  a  regular  term,  and  may  be  appealed 
from  in  like  manner.4 

1  R  S.  1112.    This  act  is  held  constitutional.    Ex  parte  Mato,  19  Aj  p.  lie. 

2  Labadie  v.  Dean,  47  T.  90:  ClegK  v.  r..unty  of  Galveston,  1  App.  C.  C.,  §  63. 
»!.&<;.  N.  liy.  Ca  r.  Sin.ti  Where  the  trial  of  a  civil  case  was 

adjourned  untii  after  the  criminal  term  of  the  county  court,  ami  the  case  was 
tlit-n  taken  up  and  tried.  it  was  held  that  the  judgment  was  void.    Bobbins  T. 

1  App.  c.  CL,  £  346. 
«RS.  1113-1117. 
5 


C6  COUKTS    AND   JUDGES.  [§§  55,  56. 

Judges  of  the  district  court  cannot  order  a  session  at  a  time  and 
in  a  manner  not  provided  for  by  law.1  Judgment  cannot  be  pro- 
nounced except  at  a  lawful  term.2  Upon  the  statute  being  complied 
with  in  other  respects,  it  is  no  objection  to  the  validity  of  the  acts 
of  the  court  at  a  special  term  of  a  district  court  that  it  was  held  by 
a  judge  of  another  district  and  at  a  time  when  the  judge  of  the  dis- 
trict was  holding  the  regular  term  of  his  court  in  another  county 
of  his  district.3 

§  55.  Terms  of  the  county  court. 

The  county  court  is  required  to  hold  at  least  four  terms  for  both 
civil  and  criminal  business  annually,  as  may  be  provided  by  the 
legislature  or  by  the  commissioners'  court  of  the  county,  under  au- 
thority of  law,  and  such  other  terms  each  year  as  may  be  fixed  by 
the  commissioners'  court;  the  commissioners'  court  of  any  county, 
having  fixed  the  times  and  number  of  terms  of  the  county  court, 
may  not  change  the  same  again  until  the  expiration  of  one  year.4 

The  county  commissioners'  court  of  the  several  counties  may,  at 
a  regular  term  of  court,  by  an  order  entered  upon  the  records,  pro- 
vide for  more  terms  of  the  county  court  for  the  transaction  of  civil, 
criminal  and  probate  business,  and  fix  the  times  at  which  each  of 
the  four  terms  required  by  the  constitution  and  the  terms  exceeding 
four,  if  any,  shall  be  held,  not  to  exceed  six  annually,  and  may  fix 
the  length  of  said  terms ;  when  it  has  fixed  the  number  of  terms  by 
an  order  entered  of  record,  it  is  not  permitted  to  make  any  change 
for  one  year  from  date  of  the  entry  of  the  original  order.5 

When  not  otherwise  provided  by  law,  the  terms  of  the  county 
court  are  held  on  the  first  Monday  in  February,  May,  August  and 
November,  and  the  court  may  continue  in  session  three  weeks.6 

§  56.  Powers  of  district  courts  and  judges. 

The  civil  jurisdiction  of  the  district  courts,  original  and  appellate, 
is  defined  by  the  constitution,  and  such  courts  and  the  judges  thereof 
"  have  power  to  issue  writs  of  habeas  corpus,  mandamus,  injunction 
and  certiorari,  and  all  the  writs  necessary  to  enforce  their  jurisdic- 
tion." 7 

The  statute  provides  that  the  judge  of  the  district  court  shall 
have  authority,  either  in  term  time  or  in  vacation,  to  grant  writs  of 

1  Chambers  v.  Hodges,  3  T.  517. 

2  Crosby  v.  Huston,  1  T.  244. 

8  Munzesheimer  v.  Fairbanks,  82  T.  351  (18  S.  W.  Rep.  697). 

«  Const,  art.  V,  §  29;  R.  S.  1167;  Schwartz  v.  Liberman,  1  App.  C.  C.,  §  289; 
Carothers  v.  WilkersonA  App.  C.  C.,  §  356;  Mo.  Pac.  Ry.  Co.  v.  Graves,  1  App. 
C.  C.,  §  677. 

«RS.  1168. 

6R.S.  1167. 

?  Const.,  art.  V,  §  8.    See  §§  91,  98, 118,  post. 


§§  57,  58.]  COURTS   AND  JUDGES.  67 


injunction,  sequestration,  attachment,  garnishment,  cer~ 
tiorari  and  ••>'//"  /•>•  </<-•/>.  and  all  other  writs  necessary  to  the  enforce- 
ment of  the  jurisdiction  of  the  court.  The  same  power  is  conferred 
upon  county  judges.1  He  may  also  appoint  counsel  to  attend  to  the 
cause  of  any  party  who  may  make  affidavit  that  he  is  too  poor  to 
employ  counsel  to  attend  to  the  same.  County  judges  may  exercise 
the  same  power.1 

§  57.  Powers  of  the  county  court  and  the  judges  thereof. 

The  jurisdiction  of  the  county  court  in  civil  matters,  original  and 
apjH'llate,  is  prescribed  by  the  constitution,  and  will  be  considered 
hereafter.  The  county  court  or  the  judge  thereof  has  power  to 
issue  writs  of  injunction,  mandamus  and  all  writs  necessary  to  the 
enforcement  of  the  jurisdiction  of  said  court.1  The  county  judge 
has  the  same  power  to  issue  writs  and  appoint  counsel  for  poor  per- 
sons as  is  conferred  on  district  judges.4 

^58.  Judicial  discretion. 

There  are  many  things,  especially  in  practice,  which  are  said  to 
be  within  the  discretion  of  the  court,  and  it  is  said  that  where  a 
judge  is  permitted  to  exercise  a  discretion,  and  there  are  no  pre- 
scribed rules  to  regulate  and  control  his  action,  it  can  have  no  other 
limit  than  his  own  moral  sense  of  justice;5  but  that  judicial  discre- 
tion does  not  mean  the  exercise  of  the  mere  arbitrary  will  and 
~ure  of  the  judge.8  There  may  be  cases  to  which  no  known 
rules  or  fixed  principles  can  be  applied;  in  such  cases  the  discretion 
exercised  will  not  be  revised.  But  where  there  are  known  rules  of 
action  prescribed,  no  exercise  of  discretion  can  dispense  with  them.7 

The  binding  force  of  established  rules  is  well  illustrated  in  a  case 
in  which  a  motion  was  made  to  put  the  witnesses  under  the  rule.8 
The  judge  overruled  the  motion,  with  the  remark  that  he  knew  of 
no  rule  of  law  requiring  witnesses  to  be  put  under  the  rule  in  a 
civil  case.  In  reply  to  this  the  supreme  court  (Walker,  J. 
"  There  is  such  a  rule,  well  recognized  in  England  and  America,  ap- 
plicable alike  to  civil  and  criminal  cases;  it  belongs  to  and  is  but  a 
part  «»f  a  >ystem  of  wise  rules  which  have  been  established  by  the 
ta  through  the  experience  of  ages,  as  best  calculated  to  develop 
truth,  expose  falsehood,  and  to  frustrate  fraud.  The  right  and  duty 

1  R.  S.  1107.  1163. 

*  R  S.  1109,  1164.    See  the  chapters  on  Jurisdiction. 

*  Const,  art.  V,  §  16.    See  §  118,  post. 
«  R  S.  1163,  1164.    See  §  56,  supra. 

»  Borden  v.  Houston,  2  T.  594.  , 

;oyl  v.  Hriiu-k,  85  T.  1. 

•  Hipp  v.  Hissell,  3  T.  18. 

-  Watts  v.  Holland,  56  T.  54. 


68  COURTS   AND   JUDGES.  [§  58. 

of  courts  alike  unite  to  require  their  observance.  They  are  essen- 
tial to  the  procurement  of  a- fair  trial,  and  to  the  illustration  of  the 
definition  given  of  a  court :  '  A  place  where  justice  is  judicially  ad- 
ministered ;  a  place  where  rights  are  determined  by  ascertained  and 
dr lined  legal  rules  of  right  and  procedure.'  The  existence  of  the 
rule,  as  applicable  to  all  kinds  of  cases,  is  not,  of  course,  to  be  con- 
founded with  the  regulations  concerning  its  application  to  a  given 
case.  The  common-law  rule  of  evidence  and  procedure  confides  to 
the  judge  a  discretionary  authority  as  to  when  the  rule  may  be  in- 
voked and  enforced.  In  our  state  no  such  discretion  is  extended  to 
the  judge  in  criminal  cases;  the  statute  gives  the  right  to  either 
party  to  invoke  the  rule.1  .  .  .  The  refusal,  in  a  proper  case, 
to  administer  to  a  party  the  benefits  of  a  rule  of  law,  on  which 
the  security  in  his  rights  of  property  depended,  by  the  court 
having  original  jurisdiction,  even  where  a  legal  discretion  was  con- 
fided to  the  judge  as  to  when  it  should  be  invoked,  and  the  refusal 
of  an  appellate  court  to  revise  and  correct  the  abuse  of  such  discre- 
tion, where  it  resulted  in  injury  to  the  party  claiming  it,  in  a  case 
where,  upon  the  facts,  it  is  apparent  that  the  protective  objects  of 
the  rule  itself  required  its  application  in  the  case,  would  amount,  in 
effect,  to  the  substitution  of  an  unregulated,  and,  as  it  might  be,  ca- 
pricious and  despotic,  discretion  in  name,  but  mere  personal  will  in 
fact,  for  the  '  law  of  the  land.' 

"Whilst  an  appellate  court  will  very  properly  refuse  ordinarily 
to  revise  the  action  of  an  inferior  court  as  to  matters  which  are 
confided  to  the  discretion  of  the  judge  in  the  administration  of  that 
class  of  rules  which  in  their  nature  are  not  susceptible  of  being  re- 
vised so  as  to  determine  whether  the  discretion  has  been  abused  or 
not,  yet  where  that  discretion  involves  the  duty  of  a'  court  to  ac- 
cord to  a  party  a  right  necessary  to  the  attainment  of  justice  in  de- 
termining his  right  to  life,  liberty  or  property,  and,  as  a  matter  of 
law,  in  the  given  case,  it  is  apparent  that  the  party  was  entitled  to 
have  that  discretion  exercised  in  his  favor,  the  reason  of  the  ordi- 
nary rule  of  not  revising  the  action  of  the  court  below  ceases,  and 
it  ought  to  be  revised  just  the  same  as  any  other  alleged  error. 

"  There  is,  of  necessity,  confided  to  the  judge  trying  a  cause,  dis- 
cretion over  a  great  variety  of  subjects  which  pertain  to  the  prog- 
ress of  the  trial,  from  its  beginning  to  the  end;  as  is  to  be  noticed 
in  respect,  for  instance,  to  continuances,  amendments  of  pleadings, 
pleadings  and  parties,  a  variety  of  matters  relating  to  practice,  the 
examination  of  witnesses,  the  granting  or  refusal  of  new  trials,  etc. 
The  principles  which  have  directed  the  decisions  of  the  supreme 
court,  in  passing  upon  questions  involving  the  right  to  revise  the 
exercise  of  judicial  discretion  when  it  has  been  employed  in  courts 

1  R.  S.  682;  Brown  v.  State,  3  App.  295. 


§58.]  c»i  JUDGES.  69 

of  original  jurisdiction,  over  all  these  various  subjects,  illustrate,  we 
think,  abundantly  tin-  propositions  which  we  have  laid  down,  and 
show  that  the  exercise  of  discretion  will  always  lie  the  subj< 
on,  where  it  can   bo  made  to  appear  that  it  has  been  ;i 
to  the  subversion  of  a  rule  of  law  which  conferred  a  right  upon  the 
injured  party."  ' 

Tico  Wheeler,  in  discussing  the  principle  of  law  applicable  to 
the  discretion  of  the  district  judge  in  applications  for  continuance, 
said:  "Our  legislature  has  seen  lit  to  prescribe  certain  rules  ap- 
ble  to  the  subject,  and  it  can  scarcely  be  supposed  that  the 
•  •tion  of  the  judge  can  rise  superior  to  these  rules.     Such  a  sup- 
ion  would  elevate  judicial  discretion  above  the  law  of  the  land. 
It  would  make  it  in  effect  arbitrary  and  absolute.     Such  a  principle 
would  be  intolerable,  and  cannot  be  recognized.     When  there  is  no 
rule,  or  when  the  rule  is  inapplicable,  or  does  not  afford  a  perfect 
guide,  then  there  is  room  for  discretion,  and  from  the  necessity  of 
the  case  it  must  exist.     There  may  be  cases  to  which  no  known 
rules  or  fixed  principles  can  be  applied ;  and  the  discretion  which 
must  be  exercised  cannot  be  the  subject  of  revision.    But  when  there 
are  known  rules  of  action  prescribed,  there  can  be  nowhere  a  dis- 
cretion to  dispense  with  them."  - 

The  court  has  a  discretion  in  granting  or  refusing  an  application 
for  a  continuance  which  does  not  comply  with  the  statute;  but  the 
discretion  is  not  an  arbitrary  one,  and,  if  it  has  been  abused,  the  ap- 
pellate court  will  revise.* 

A  discretionary  power  may,  when  exercised  by  a  corrupt  and  in- 
competent judge,  become  a  despotic  power;  but  the  rule  is  that  a 
judge  of  a  court  of  superior  or  general  authority  is  not  liable  in  a 
civil  action  for  his  judicial  acts.  It  is  said  that  this  rule  obtains  in 
all  countries  where  there  is  any  well-ordered  system  of  jurispru- 
dence. It  has  been  the  settled  doctrine  of  the  English  courts  for 
centuries,  and  seems  never  to  have  been  denied  in  the  courts  of  this 
country.  This  exemption  from  civil  liability  cannot  be  affected  by 
the  motives  with  which  judicial  acts  are  performed.  The  purity  of 
the  motives  cannot  in  this  way  be  made  the  subject  of  judicial  in- 
quiry. It  is  not  material  that  the  acts  complained  of  were  in  « 
of  the  jurisdiction  of  the  court *and  are  alleged  to  have  been  done 
maliciously  or  corruptly.  Hut  it  is  said  that  a  distinction  must 

'Ol.lham  v.  Stak-T.  JJ  T.  200;  Brooks  r.  Howard,  30  T.  278:  Stanl.-y  v.  Kpper- 
8.m.  r,  T.  64.-i;  Mays  v.  Moore,  13  T.  »5;  Hipp  v.  Hat.  1.,-tt.  4  T.  •„'<»:  Hipp  v.  Bissell, 

ia 

-Hipp  v.  Bissell,  3  T.  21. 

»Tex.  &  Pac.  Ry.  Co.  v.  Hardin.  fi'2  T.  :UiT:  Allyin  v.  Willis.  IW  T.  65:  Guy  v. 
Metcalf.  83  T.  37  (18  S.  W.  Rep.  419);  Rubrecht  v.  Powers,  1  Oto  Aj.p.  v 
S.  \V.  Rep.  319). 


70  COUKTS   AND   JUDGES.  [§  59. 

be  observed  between  an  excess  of  jurisdiction  and  the  clear  absence 
of  all  jurisdiction  over  the  subject-matter.  Where  there  is  clearly 
no  jurisdiction  over  the  subject-matter,  any  authority  exercised  is  a 
usurped  authority,  and  for  the  exercise  of  such  authority,  when  the 
want  of  jurisdiction  is  known  to  the  judge,  no  excuse  is  permissible. 
But  where  jurisdiction  over  the  subject-matter  is  vested  by  law  in 
the  judge,  or  in  the  court  which  he  holds,  the  manner  and  extent 
in  which  the  jurisdiction  shall  be  exercised  are  generally  as  much 
questions  for  his  determination  as  any  other  questions  involved  in 
the  case,  although  upon  the  correctness  of  his  determination  in  these 
particulars  the  validity  of  his  judgments  may  depend.  In  reference 
to  judges  of  limited  and  inferior  authority,  it  has  been  held  that 
they  are  protected  only  when  they  act  within  their  jurisdiction.1 
The  practical  solution  of  the  question  of  liability  depends  upon 
whether  the  act  complained  of  was  ministerial  or  judicial.  As  a 
general  rule,  in  the  former  case  an  action  will  lie,  in  the  latter  it 
will  not  lie.2 

§  59.  Proceedings  in  vacation. 

The  record  of  a  judgment  may  be  amended  in  vacation.3  Writs 
of  injunction  may  be  granted.4  A  remittitur  may  be  entered  be- 
fore the  clerk  in  vacation.5  A  statement  of  facts  may  be  filed  in 
vacation,  pursuant  to  an  order  entered  of  record  during  the  term.6 
Proceedings  in  respect  to  apprentices,  except  the  act  of  apprenticing 
the  minor,  may  be  had  either  in  terra  time  or  in  vacation.7  The  judge 
of  the  district  court  may,  in  vacation,  appoint  a  receiver  in  pro- 
ceedings by  a  city  to  compromise  its  debts.8  Disobedience  of  an 
injunction  may  be  punished  by  the  judge  in  vacation.9  Proceed- 
ings for  the  removal  of  officers  may  be  commenced  in  vacation.10 
A  petition  for  leave  to  file  an  information  in  the  nature  of  a  quo 
warranto  may  be  presented  to  the  district  judge  and  may  be  granted 
by  him  in  vacation.11 

The  judges  of  the  district  and  county  courts  may  issue,  in  vaca- 
tion as  well  as  in  term  time,  writs  of  mandamus,  injunction,  seques- 

1  Randall  v.  Brigham,  7  Wall.  523;  Bradley  v.  Fisher,  13  Wall  335,  2  Myer's 
Fed.  Dec.,  pp.  1418,  1431. 

2  Rains  v.  Simpson,  50  T.  495. 
»RS.  1357,  1358. 

<RS.  1107,  1163,2989. 

»  R  S.  1355. 

6  R  S.  1381. 

i  R.  S.  43. 

8  R  S.  480. 

»  R  S.  3011. 
1°  R  S.  3542. 
"  R  S.  4343. 


§  60.]  COURTS    AND   JUDGES.  71 

t ration,  attachment,  garnishment,  certiorari,  supersedeas,  and  all 
other  writs  necessary  to  enforce  the  jurisdiction  of  such  courts.1 

All  parties  to  a  suit  may  in  vacation  amend  their  pleadings,  may 
file  suggestions  of  death  and  make  representative  parties,  and  make 
new  parties,  and  file  such  other  pleas  with  the  clerk  of  the  court  in 
\viiich  such  suit  is  pending  as  they  may  desire.  And  any  party  may 
in  vacation  intervene  in  any  suit  pending  such  amendments  and 
.  subject  to  be  stricken  out  at  the  next  term  of  the  court  on 
motion  of  the  opposite  party  to  the  suit  for  sufficient  cause  shown 
oi-  existing,  to  be  determined  by  the  court.  But  it  is  the  duty  of 
the  party  tiling  such  pleadings  to  notify  the  opposite  party  or  his 
attorneys  of  the  filing  of  such  papers  within  five  days  from  the 
filing  of  the  same.  All  amendments  to  pleadings,  pleas,  and  pleas 
<»f  intervention,  must,  when  court  is  in  session,  be  filed  under  leave 
of  the  court,  upon  such  terms  as  the  court  may  prescribe,  before 
the  parties  announce  ready  for  trial,  and  not  thereafter.2 

A  district  judge  may  in  vacation  appoint  receivers  and  adminis- 
ter property  incident  to  such  receivership,  but  he  cannot,  upon  ap- 
plication therefor  being  made  to  him  at  such  time  by  creditors 
attacking  ;t  deed  of  trust  to  secure  certain  creditors,  go  beyond  a 
refusal  to  appoint  and  adjudicate  the  validity  of  the  deed  of  trust 
ami  require  the  trustee  therein  to  file  a  bond  and  inventory  and  to 
hold  the  assets  and  account  to  the  court.3 

Where  an  alternative  writ  of  mandamus  is  sued  out  in  vacation, 
it  should  be  made  returnable  to  the  next  regular  term.* 

£  60.  Contempt  of  court. 

The  district  and  county  courts  have  power  to  punish  by  fine  not 
ding  $100,  and  by  imprisonment  not  exceeding  three  days, 
any  person  guilty  of  contempt  of  such  courts.9 

An  attorney  at  law  is  subject  to  fine  or  imprisonment  by  any 
court  in  which  he  may  practice  for  misbehavior  or  contempt  offered 
to  such  court ;  but  he  may  not  be  suspended  or  stricken  from  the 
rolls  for  contempt  unless  it  involves  fraudulent  or  dishonorable  con- 
duct or  malpractice.6  No  appeal  lies  from  the  judgment  of  the 
court  under  this  article  punishing  the  attorney  as  for  a  contempt.7 

The  bringing  of  a  fictitious  case  for  the  purpose  of  obtaining  the 
opinion  of  the  court  on  the  matters  presented  by  it  is  a  contempt 
on  the  part  of  the  parties  and  the  attorneys.8  Any  attorney  who 

IRS.  HOT,  1163. 

S.  1188. 

H.iiTiM.n  v.  \Vat«  rl..-rry.  27  &  W.  Rep.  430.     See  R  S.  1465. 
«  Murphy  v.  \\Vnt  w.rth.  W  T.  147. 
»R  S.  1101,  1161. 
h  R  8.  262. 

s(-y  v.  Stat.    N  !     >0:  State  v.  Thurmond,  37  T.  340. 
« Smith  v.  Brown.  :j  T. 


72  COURTS   AND   JUDGES.  [§  61. 

shall  bring  a  fictitious  suit  as  an  experiment  to  get  an  opinion  of 
the  court,  or  who  shall  tile  any  fictitious  pleading  in  a  cause  for 
such  purpose,  or  shall  make  statements  in  pleading  presenting  a 
state  of  case  which  he  knows  to  be  groundless  and  false,  for  the 
purpose  of  securing  a  delay  of  the  trial  of  the  cause,  may  be  held 
guilty  of  a  contempt,  and  the  court,  of  its  own  motion,  or  at  the 
instance  of  any  party,  will  direct  an  inquiry  to  ascertain  the  fact.1 
Applying  abusive  and  opprobrious  epithets  to  a  judge  in  vacation 
does  not  involve  fraudulent  or  dishonorable  conduct  or  malpractice 
within  the  meaning  of  the  statute.2 

The  forcible  interference  with  and  defiance  of  the  lawful  author- 
ity of  a  court  is  an  offense  irrespective  of  the  intent  with  which 
the  act  is  committed;  the  plea  of  ignorance  is  wholly  inadmissible.3 

Disobedience  of  an  injunction  may  be  punished  by  the  court  or 
judge  in  term  time  or  in  vacation.4  The  delivery  of  personal  prop- 
erty pursuant  to  a  judgment  may  be  enforced  by  attachment,  fine 
and  imprisonment.5  Clerks,  sheriffs,  constables  or  other  officers 
neglecting  or  refusing  to  perform  any  duty  required  of  them  under 
title  30  of  the  statutes  regulating  practice  may  be  punished  as  for 
a  contempt.6  Witnesses  refusing  to  obey  a  subpoena  may  be  pun- 
ished,7 or  for  refusing  to  give  evidence,3  if  the  question  asked  is 
legal  and  proper.9  A  jury  commissioner  failing,  without  a  reason- 
able excuse,  to  attend  and  perform  the  duties  required  of  him  may 
be  punished.10  Defaulting  jurors  who  have  been  lawfully  notified 
may  be  punished.11  Conversing  with  a  juror,  without  permission 
from  the  court,  while  the  jury  has  a  case  under  advisement,  is  a 
contempt.12 

§  61.  Proceedings  in  contempt  cases. 

It  is  not  proper  to  call  a  jury  to  try  a  question  of  contempt,  ex- 
cept where  it  is  expressly  provided  for  by  law.  If  the  contempt  be 
committed  in  view  of  the  court,  it  may  summarily  punish  the  of- 
fender. If  the  party  be  only  prima  facie  in  contempt,  as  where  a 
sheriff  fails  to  return  process,  or  where  the  act  is  not  committed  in 
the  presence  of  the  court,  or  so  near  as  to  interfere  with  its  busi- 

i  Rule  51. 

a  Jackson  v.  State,  21  T.  668. 

'State  v.  Sparks,  27  T.  705. 

«  R  S.  3011. 

»  R  S.  1339. 

«  R  S.  1455;  Crow  v.  State,  24  T.  12. 

7  R  S.  2267. 

8  R  S.  2269,  2283. 

9  Hoi  man  v.  Mayor  of  Austin,  34  T.  668. 
10  R  S.  3148. 

»  R  S.  3186. 

«  Ellis  v.  Ponton,  32  T.  434. 


''•2,  C3.]  COURTS    AND   JUDGES.  73 

ness,  the  proper  practice  is  to  enter  a  judgment  n!xi  for  the  amount 
of  the  lint-,  ami  to  issue  a  requiring  the  offender  to  show 

cause  why  it  should  not  he  made  final;  and  lit*  must  answer  under 
oath.  The  court  is  to  decide  whether  the  answer  is  sufficient  to 
piirjre  the  contempt ;  it  is  not  restricted  to  the  answer,  but  may  re- 
ceive other  e\  idence,  and  may  in  its  discretion  remit  the  line  in 
whole  or  in  part,  with  or  without  costs;  there  is  no  appeal  from 
the  judgment.1  The  srire facia*  should  properly  describe  the  court 
in  which  the  judgment  •/*/*/'  was  rendered.*  A  contempt  of  court 
is  not  an  offense  or  crime  within  the  meaning  of  the  penal  code.' 
It  is  said,  however,  that  a  wilful  contempt  is  an  offense  at  common 
within  no  limited  or  restricted  sense,  but  in  the  general  sense 
of  crime.4  The  general  rule  is  that  neither  an  appeal  nor  writ  of 
habeas  corpus  will  lie  to  revise  the  judgment  of  the  court.5 

§  62.  Writs  and  process. 

The  style  of  all  writs  and  process  shall  be  "The  State  of  Texas."  * 
The  impress  of  the  seal  of  the  district  and  county  courts  must  be 
attached  to  all  process  issuing  out  of  such  courts,  except  subpoenas.7 
All  process,  except  subpoenas,  not  under  seal  is  void.8  A  citation 
not  under  seal  is  void,  and  will  not  support  a  judgment  1>\  default." 
All  process  must  be  made  returnable  on  the  first  day  of  the  next 
term  of  the  court  after  the  issuance  thereof,  must  be  dated  and 
tested  by  the  clerk,  and  the  date  of  the  issuance  of  such  process  or 
writ  must  be  noted  thereon.10 

£  63.  Seals  of  district  and  county  courts. 

h  of  the  several  district  courts  must  be  provided  with  a  seal, 
having  engraved  thereon  a  star  of  five  points,  in  the  center,  and  the 
words.  "  District  Court  of  -  —  County,  Texas,"  the  impress  of  w  h  ich 
must  be  attached  to  all  process,  except  subpoenas,  issued  out  of  the 
eourt,  and  must  be  used  to  authenticate  the  official  acts  of  the  clerk. 
When  no  such  seal  has  been  provided  for  the  court,  the  clerk  may 
use  a  scroll  until  a  seal  can  be  procured.11  The  same  provision  i& 
made  for  county  courts.1-  In  counties  in  which  a  single  clerk  is 

1  Crow  v.  State,  24  T.  12;  State  v.  Thurmond,  37  T.  340;  Ex  parte  Ireland,  38  T. 
144 

2  Carter  v.  State,  4  App.  165. 

I  Casey  v.  State,  25  T.  380. 

«  United  St;it. •>  v.  Jacobi,  1  Flippin,  108,  11  Myer's  Fed.  Dec.,  §  2150.     But  the 
common  law  as  to  crime  is  not  in  force  in  Texas. 
•  Jordan  v.  State,  14  T.  436;  Casey  v.  State,  25  T.  380. 
•Const,  art  V.  g  12:  R.  s.  1 147. 
7R  S.  UK.  117-J.  1117.  Ml-. 
"Frosh  v.  Schlumpf.  '2  T.  l.'J. 

I 1  lale  v.  Gee.  ','!•  S.  \V.  K.-p.  1 L 
'"  K.  a  1447. 

»  R.  S.  11  :.'•,'.  Il-j:i.  1447.  1448. 

ls  R.  S.  1 17-J,  1177.    Tlu-  seal  of  the  supreme  court  has  a  star  of  five  points,  with. 


74  COURTS   AND   JUDGES.  [§  64. 

elected  for  the  district  and  county  courts,  he  is  required  to  use  the 
seal  of  the  district  court  in  performing  his  duties  as  clerk  of  that 
court,  and  in  performing  the  duties  of  clerk  of  the  county  court  to 
use  the  seal  of  that  court.1 

The  notices  of  a  special  term  of  the  district  court  must  be  under 
seal.- 

The  commissioners'  court  is  required  to  provide  seals  for  the  dis- 
trict and  county  courts.3  The  clerk  of  the  district  court  is  the  cus- 
todian of  the  seal  of  the  court.4  The  clerk  of  a  court  of  record  is 
ordinarily  the  keeper  of  its  seal,  and  the  seal  of  the  court  of  which 
he  is  clerk  is  his  official  seal.5  A  seal  bearing  the  words  "  District 
Court,  Bexar  County,"  instead  of  "  District  Court  of  Bexar  County," 
was  held  to  be  valid.6  The  rules  for  the  district  and  county  courts 
provide  that  the  sheets  on  which  the  transcript  on  appeal  is  written 
shall  be  fastened  together  at  the  upper  end  with  tape,  ribbon,  or  some- 
thing of  the  kind,  and  sealed  over  the  tie  with  the  seal  of  the  court.7 

g  64.  Minutes  of  court. 

The  minutes  of  the  proceedings  of  each  preceding  day  of  the  ses- 
sion must  be  read  in  open  court  on  the  morning  of  the  succeeding 
day ;  except  on  the  last  day  of  the  session,  on  which  day  they  must 
be  read,  and  if  necessary  corrected  and  signed  in  open  court  by  the 
judge.  When  a  special  judge  has  presided  during  the  term,  or  a 
portion  thereof,  or  in  the  trial  of  a  particular  case,  he  must  sign  the 
minutes  of  such  proceedings  as  were  had  before  him.8  The  same 
provision  is  made  for  county  courts.9 

An  amendment  of  a  judgment  by  the  judge  in  vacation  must  be 
entered  in  the  minutes.10  Also  the  action  of  the  court  in  receiving 
a  verdict ;  n  or  the  remittitur  of  an  excess  in  a  verdict ; 12  or  the  order 
of  a  district  judge  appointing  a  special  term  of  the  district  court, 
and  the  notice  and  the  return  thereof  by  the  sheriff.13  Also  the 
record  of  the  election  of  a  special  district  or  county  judge.14 

the  words  "  Supreme  Court  of  the  State  of  Texas  "  engraved  thereon.  R  S.  953. 
The  seal  of  the  courts  of  civil  appeals  is  of  the  same  design,  containing  the 
words  "Court  of  Civil  Appeals  of  the  State  of  Texas."  R.  S.  1004. 

•  R  S.  1097,  1153. 
2RS.  1115. 

3  R  S.  1551. 
« R.  S.  1093. 

*  Moore  v.  Carson,  12  T.  66. 

6  Cordova  v.  State,  6  App.  207;  Marnock  v.  State,  7  App.  269. 

7  Rule  90;  Mays  v.  Forbes,  11  T.  284. 
«R  S.  1120,  1121. 

•»RS.  1170,  1171. 
'»R  S.  1358. 
»  RS.  1324,1325. 
12  R  S.  1353,  1354. 
i»R  S.  1114,  1116. 

S.  1070,  1075,  11320. 


CHAPTER  IIL 


OF  JURISDICTION. 


(General  principles. 
68.  At  law  and  in  equity. 

67.  Courts  and  legislature  bound  by 

the  organic  law. 

68.  Concurrent  jurisdiction. 

69.  Courts  of  general,  and  of  special 

and  limited,  jurisdiction. 

70.  Collateral  attack. 


§  71.  Jurisdiction  by  consent 

72.  Over  the  subject-matter. 

73.  Jurisdiction  over  the  person. 

74.  Jurisdiction  over  non-residents. 

75.  Extra-territorial  jurisdiction. 

76.  Local  and  transitory  actions, 

77.  Same;  tort  actions. 

78.  Fraud  on  the  jurisdiction. 


§  65.  General  principles. 

The  jurisdiction  of  a  court  means  the  power  or  authority  con- 
ferred upon  it  by  the  constitution  and  laws  to  hear  and  determine 
eauses  between  parties,  and  to  carry  its  judgments  into  effect.1  And 
to  give  any  binding  effect  to  the  proceedings  of  a  court,  it  must 
have  jurisdiction  of  the  person  of  the  defendant  and  of  the  cause  or 
subject-matter;  the  want  of  jurisdiction  makes  the  judgment  ut- 
terly void  and  unavailable  for  any  purpose.2  The  principle  that 
the  judgment  of  a  court  acting  without  authority  is  null,  seems  to 
be  of  universal  application ;  the  only  difference  in  its  effect  on  the 
judgments  of  courts  of  general  jurisdiction,  and  courts  of  specially 
limited  jurisdiction,  is  that,  in  support  of  the  former,  jurisdiction  is 
presumed,  while  in  support  of  the  latter,  jurisdiction  must  be  proved.3 
The  word  jurisdiction,  when  its  meaning  is  involved  in  an  inquiry 
as  to  whether  the  judgment  of  a  court  is  void  or  voidable,  can  have 
but  one  meaning,  and  that  is  the  lawful  power  to  hear  and  deter- 
mine the  matter  in  controversy.  If  this  power  did  not  exist,  and 
its  absence  is  shown  from  the  record,  the  judgment  rendered  in  the 
attempt  to  exercise  jurisdiction  is  void.4 

The  direct  purpose  of  all  judicial  action  is  relief  to  a  litigant, 
which  cannot  be  given  by  a  judgment  or  decree  alone,  but  must  be 
given,  if  at  all,  through  the  enforcement  of  the  one  or  the  other  by  ap- 
propriate process;  and  the  highest  test  of  the  jurisdiction  of  a  court 

i  Withers  v.  Patterson,  27  T.  491;  City  of  Brownsville  v.  Basse,  43  T.  441. 

'Mitchell  v.  Runkle,  25  T.  Sup.  132;  Fleming  v.  Nail,  1  T.  250;  Horan  v.  Wah- 
renoerger,  9  T.  3ia 

»  Horan  v.  Wahrenberger,  9  T.  313;  Bryant  v.  Kelton,  1  T.  434;  Walker  v. 
Myers,  36  T.  203.  A  judgment  rendered  without  jurisdiction  is  void.  G.,  C.  & 
S/F.  Ry.  Co.  v.  Rawlins,  80  T.  579  (16  a  W.  Rep.  430). 

« Stewart  v.  Anderson,  70  T.  588  (8  S.  W.  Rep.  2«5). 


76  JURISDICTION,  [§§  66,  67. 

in  a  given  case  is  found  in  the  answer  to  an  inquiry  whether  it  has 
lawful  power  thus  to  enforce  its  judgment  or  decree.  This  rule  is  thus 
clearly  expressed  by  the  court  of  appeals  of  Maryland:1  "  It  would 
be  an  idle  thing  in  chancery  to  entertain  jurisdiction  of  a  matter  not 
within  its  reach,  and  make  a  decree  which  it  could  have  no  power 
to  enforce  or  to  compel  a  compliance  with.  And  the  absence  of 
that  very  power  is  a  good  test  by  which  to  try  the  question  of  juris- 
diction. It  would  be  a  solecism  to  say  that  the  chancellor  has  ju- 
risdiction to  decree  in  rem,  where  the  thing  against  which  the 
decree  goes,  and  is  alone  the  subject  of  and  to  be  operated  upon  by 
it,  is  beyond  the  territorial  jurisdiction  of  the  chancery  court,  and 
not  subject  to  its  authority,  and  the  decree,  if  passed,  would  itself 
be  nugatory  for  the  want  of  power  or  jurisdiction  to  give  it  effect." 
Jurisdiction  must  depend  upon  the  laws  creating  and  prescribing 
the  powers  of  the  tribunal;  and  if  it  attempt  to  exercise  a  power 
not  thus  conferred,  its  judgments  are  not  binding.  If  the  fact  on 
which  jurisdiction  depends  is  determined  by  law,  then  resort  to  the 
presumptions  ordinarily  indulged  in  favor  of  the  power  of  a  court 
of  general  jurisdiction  which  has  assumed  to  act  in  a  given  case  is 
neither  necessary  nor  admissible.  Where  one  court  has  assumed 
the  power  to  act  in  a  given  case,  every  lawful  presumption  that  it 
did  not  act  without  jurisdiction  ought  to  be  indulged ;  but  where  it 
is  clear  that  a  court  has  acted  without  lawful  power,  another  court, 
when  called  upon  to  adjudicate  the  rights  of  litigants,  cannot  law- 
fully refuse  to  make  inquiry  even  as  to  the  jurisdiction  of  the  other 
when  this  becomes  necessary  to  the  determination  of  the  questions 
before  it.2 

§  66.  At  law  and  in  equity. 

The  courts  of  this  state  have  jurisdiction  of  rights  equitable  as 
well  as  legal,  and  all  rights,  both  legal  and  equitable,  appertaining 
to  the  parties  and  subject-matter,  must  be  adjudicated  in  every  suit 
where  they  are  litigated  and  drawn  in  question.3 

§  67.  Courts  and  legislature  bound  by  the  organic  law. 

Courts  cannot  transcend  the  jurisdiction  given  them  by  the  law 
of  their  creation.  Their  powers  cannot  be  enlarged  by  intendment, 
so  as  to  embrace  objects  not  expressed  in  the  law.4  It  was  the  ob- 
ject of  the  framers  of  the  constitution  to  mark  out  a  complete  judi- 

1  White  v.  White,  7  Gill  &  J.  210. 

2  Tex.  &  Pac.  Ry.  Co.  v.  Gay,  86  T.  571  (26  S.  W.  Rep.  599). 

'Const.,  art.  V,  §  8;  R  S.  1191;  Smith  v.  Doak,  3  T.  216:  Simpson  v.  Huston,  14 
T.  476;  Payne  v.  Benham,  16  T.  364;  Gibson  v.  Moore,  22  T.  611;  Douglass  v.  Neil, 
87  T.  528. 

4  Cowan  v.  Nixon,  28  T.  230;  Baker  v.  Chisholm,  3  T.  157;  Solon  v.  State,  5 
App.  301. 


f  OS.]  .ui:i>i.i(  II...N.  77 

cial  sy^t.-m.  detinini:  generally  the  province  of  each  of  the  courts, 
by  reference  \<t  the  objects  confided  to  the  action  of  each,  and  the 
ivlatioii  of  each  to  the  others.  Such  a  system  cannot  be  changed 
by  action  <>t  the  legislative  department,  except  when  the  power  to 
make  the  change  is  conferred  by  the  constitution  itself.1 

When  the  constitution  confers  jurisdiction  "with  such  exceptions 

and  under  such  regulations  as  the  legislature  shall  make,"  and  the 

legislature  adopts  statutory  regulations  restricting  jurisdiction,  such 

regulation  is  in  effect  a  negative  on  the  exercise  of  any  jurisdiction 

:>t  such  as  is  included  in  the  statute.2 

£  68.  Concurrent  jurisdiction. 

Where  the  jurisdiction  is  concurrent,  the  court  which  first  takes 
jurisdiction  acquires  control  to  the  exclusion  of  the  other,  and  is 
entitled  to  go  on  to  judgment.3  The  conferring  upon  an  inferior 
court  jurisdiction  of  a  case  of  which  a  superior  court  has  juris- 
diction renders  their  jurisdiction  concurrent  but  not  inconsistent.* 
There  is  a  manifest  propriety,  if  not  necessity,  for  holding  that  the 
court  which  tirst  acquires  jurisdiction  over  a  controversy  should 
maintain  it  undisturbed  by  the  interference  of  any  other  co-ordinate 
jurisdiction,  and  there  is  much  force  in  the  proposition  that  its  juris- 
diction over  the  res  to  which  the  controversy  relates  should  not  be 

1  Ex  parte  Towles,  48  T.  413.  On  April  2,  1869,  M.  instituted  a  suit  in  the  dis- 
trict court  to  divest  her  children,  who  were,  at  the  time,  minors,  of  the  title  to 
certain  real  estate  in  Texas,  previously  conveyed  to  them  by  a  deed  of  gift  from 
her,  and  to  vest  the  same  in  "W.,  offering  to  recompense  the  minors  for  their  in- 
terest in  the  Texas  property  by  a  mortgage,  to  the  extent  of  its  value,  upon 
property  in  the  state  of  New  Jersey,  acquired  by  her  from  W.  subsequently  to 
her  deed  to  them,  and  in  exchange  for  which  she  had  conveyed  the  Texas  prop- 
erty, at  a  valuation  agreed  upon  between  W.  and  herself.  The  proceedings  were 
wholly  between  M.  and  W.,  and  a  decree  was  entered  in  the  cause  divesting  the 
children  of  the  title  to  the  Texas  property  and  vesting  it  in  W.  The  minors 
ataining  majority  brought  suit  for  its  recovery,  and  it  was  held  (1)  that 
no  power  exists  in  any  person  or  tribunal  to  divest  a  minor  of  title  to  real  es- 
tate, unless  such  power  be  conferred  by  the  law-making  department  of  the  state. 
'•,'•  That  the  district  court  had  no  jurisdiction  of  the  matter  in  which  it  avsiiuieil 
to  act,  by  any  power  conferred  upon  it  by  either  the  constitution  of  1806  or  the 
laws  in  force  at  the  time.  Its  judgment  granting  the  relief  prayed  for  was  thr 
attempted  exercise  of  an  original  jurisdiction  conferred  upon  county  courts 
alone,  and  was  void.  (3)  That  the  district  court,  whether  as  a  court  of  law  or  a 
court  of  equity,  had  only  such  power  as  the  constitution  gave  it.  There  is  no 
such  power  as  the  inherent  power  of  a  court,  if  by  that  is  meant  a  power  which 
a  court  may  t-xcrrise  without  a  law  authorizing  it.  (4)  When  the  constitution. 
in  express  terms,  confers  upon  one  court,  and  not  upon  another,  jurisdiction 
o\.-r  a  particular  subject-matter,  it  must  be  presumed  that  it  was  intended  that 
the  jurisdiction  thus  conferred  should  be  exclusive.  Messner  v.  Giddings,  65 
T.  301. 

2 Ropers  v.  K'.-nnanl,  54  T.  30. 

'Burdett  v.  state,  9  T.  43:  Clepper  v.  State,  4  T.  242. 

« Johnson  v.  Happell,  4  T.  96. 


78  JURISDICTION.  [§§  69,  70. 

interfered  with  in  any  case  in  which  the  custody  of  the  thing  is 
necessary  to  the  full  adjustment  of  the  rights  of  the  parties  to  the 
controversy.1 


§  69.  Courts  of  general,  and  of  special  and  limited,  jurisdiction. 

It  is  only  when  a  court  of  general  jurisdiction  has  conferred  on 
it  special  and  summary  powers,  wholly  derived  from  the  statute, 
and  which  do  not  belong  to  it  as  a  court  of  general  jurisdiction,  and 
when  such  powers  are  not  exercised  according  to  the  course  of  the 
common  law,  that  its  judgments  are  to  be  treated  like  those  of  courts 
of  special  and  limited  jurisdiction.2 

"Whether  the  jurisdiction  of  the  court  be  general  or  special,  it  can- 
not be  made  to  depend  upon  the  character  of  the  process  through 
which  it  acquires  power  over  the  person  or  thing  to  be  affected  by 
its  final  adjudication.  The  same  presumption  must  be  indulged  in 
favor  of  jurisdiction  whether  service  be  had  personally  or  by  publi- 
cation.* 

Every  court  of  limited  powers  must  determine  its  own  jurisdiction 
in  the  first  instance,  but  this  does  not  preclude  another  court  from 
making  the  same  inquiry.  It  is  held,  however,  that  evidence  aliunde 
the  record  cannot  be  considered  by  an  appellate  court  in  determin- 
ing the  question  of  the  jurisdiction  of  the  court  a  quo* 

§  70.  Collateral  attack. 

The  finding  of  a  court  of  general  jurisdiction  in  regard  to  the 
jurisdictional  facts  on  which  its  judgment  is  based  is  conclusive 
against  all  collateral  attacks,  except  in  cases  where  the  record  of 
its  own  proceedings  discloses  their  nullity  by  showing  that  jurisdic- 
tion had  never  attached  in  the  particular  case.5 

When  a  domestic  judgment  is  attacked  collaterally,  every  pre- 
sumption will  be  indulged  in  favor  of  the  jurisdiction  of  the  court 
and  the  validity  of  its  judgment  ;  and  where  it  does  not  otherwise 
appear,  it  will  be  presumed  that  the  court  ascertained  all  the  facts 
necessary  to  its  jurisdiction.  To  attack  the  jurisdiction  it  must 
affirmatively  appear  that  the  facts  essential  to  it  did  not  in  fact 
exist.  In  construing  the  effect  of  judgments  rendered  upon  con- 
structive service  by  publication,  the  same  conclusive  effect  is  given 
to  them  as  to  those  rendered  upon  personal  service.  And  should 
an  affidavit  made  as  the  basis  for  citation  by  publication  be 


.  Trunk  Ry.  Co.  v.  Lewis,  81  T.  1  (16  S.  W.  Rep.  647). 

2  Holmes  v.  Buckner,  67  T.  107  (2  S.  W.  Rep.  452). 

'Stewart  v.  Anderson,  70  T.  588  (8  S.  W.  Rep.  295). 

*  Griffin  v.  Brown,  1  App.  C.  C.,  §  1098,  citing  Lindsey  v.  Luckett,  20  T.  516; 
Chrisman  v.  Graham,  51  T.  454. 

»  Brockenbrough  v.  Melton,  55  T.  493;  Williams  v.  Haynes,  77  T.  283  (13  S.  W. 
Eep.  1029). 


§71.]  JURISDICTION.  Ti) 

found  wholly  insufficient,  or  no  affidavit  at  all,  the  judgment  would 
nevertheless  stand  when  attacked  collaterally,  because  the  law  pre- 
sumes that  a  proper  affidavit  was  made,  and  such  presumption  will 
exist  until  the  contrary  is  affirmatively  shown  by  something  in  the 
record.1  And  a  recital  in  the  judgment  that  the  defendant  was 
"duly  cited  with  process"  imports  absolute  verity.  If  the  uncon- 
tnulicted  recitals  in  the  record  show  affirmatively  that  the  court 
did  not  have  jurisdiction  over  the  subject-matter,  or  that  the  juris- 
diction over  the  person  did  not  attach,  then  a  presumption  to  the 
contrary  will  not  be  indulged.  Otherwise  the  presumption  in  favor 
of  the  jurisdiction  of  the  court  would  prevail  in  every  case,  and 
the  mere  rendition  of  the  judgment  would  of  itself  import  abso- 
lute verity.  To  thus  hold,  in  cases  where  the  record  shows  affirm- 
atively want  of  jurisdiction,  would  itself  impeach  the  record,  and 
thus  violate  the  very  rule  sought  to  be  invoked,  that  the  record 
cannot  in  a  collateral  proceeding  be  contradicted.2 

Whatever  may  be  the  hardship  of  the  particular  case,  yet,  upon 
considerations  of  public  policy  and  from  the  weight  of  authority, 
the  true  rule  is  held  to  be,  that  a  domestic  judgment  of  a  court  of 
general  jurisdiction,  upon  a  subject-matter  within  the  ordinary  scope 
of  its  power  and  proceedings,  is  entitled  to  such  absolute  verity, 
that  in  a  collateral  action,  even  when  the  record  is  silent  as  to  no- 
tice, the  presumption,  when  not  contradicted  by  the  record  itself, 
that  the  court  had  jurisdiction  of  the  person  also,  is  so  conclusive 
that  evidence  aliunde  will  not  be  admitted  to  contradict  it.1 

As  to  foreign  judgments,  the  rule  is  that  when  sued  upon  or  of- 
fered as  a  basis  of  right  in  a  court  in  Texas,  it  may  be  shown  that 
the  court  rendering  the  judgment  had  no  jurisdiction  either  of  the 
subject-matter  or  the  person.4  The  record  of  such  a  judgment  may 
be  contradicted  as  to  the  facts  necessary  to  give  the  court  jurisdic- 
tion, notwithstanding  it  may  be  recited  therein  that  they  did  exist; 
and  if  it  be  shown  that  in  fact  such  jurisdiction  did  not  attach,  the 
judgment  is  a  nullity.* 

71.  Jurisdiction  by  consent. 

Jurisdiction  cannot  be  given  by  consent  over  the  subject-matter, 
but  it  is  otherwise  as  to  the  person.8  "Where  there  is  a  demurrer  to 

i  Hardy  v.  Beaty,  84  T.  563  (19  S.  W.  Rep.  778). 

JTreadway  v.  Eastburn,  57  T.  209;  Murchisun  v.  \Vhiu-.  .">4  T.  78;  Bordagers  v. 
Higgins,  1  Civ.  App.  43  (19  S.  W.  Rep.  446;  20  S.  W.  Rep.  U 

»Tennell  v.  Breedlove,  54  T.  540;  Fitch  v.  Boyer,  51  T.  344;  Kramer  v.  Breed- 
love,  8  S.  W.  Rep.  561. 

«  Norwood  v.  Cobb,  15  T.  500;  Chunn  v.  Gray,  51  T.  114;  Redus  v.  Burn. 
T.  576;  Franz  Falk  Brewing  Co.  v.  Hirsch,78T.  1DJ    1 1  &  W.  Rep.  450);  Southern 
Ins.  Co.  v.  Wolvi-rt.m  Hardware  Co.,  19  S.  W.  Rep.  615. 

•Chuun  v.  Gray,  51  T.  1 12. 

•Morton  v.  Gordon,  Dallam,  396;  Wynns  r.  Underwood,  1  T.  48;  Burnley  v. 


80  JURISDICTION.  [§  72. 

the  jurisdiction  of  the  court,  and  the  record  fails  to  show  any  ac- 
tion thereon,  all  parties  before  the  court  are  taken  to  have  submitted 
to  its  jurisdiction.1  In  the  absence  of  citation,  when  jurisdiction 
over  the  person  is  acquired  by  a  voluntary  appearance  and  answer 
filed,  it  is  not  lost  by  sustaining  a  demurrer  to  the  answer.2 

An  agreement  in  a  lease  from  the  state  that  the  venue  for  suit 
upon  it  shall  be  in  Travis  county  does  not  confer  jurisdiction  upon 
the  court  over  the  person  of  the  party  signing  such  lease  contract 
who  is  a  citizen  and  resident  of  another  state.3 

Consent  of  parties  cannot  give  jurisdiction  to  a  county  court  to 
exercise  general  supervisory  control  over  justices'  courts.4  If  the 
court  has  jurisdiction  of  the  subject-matter  or  cause  of  action,  con- 
sent may  confer  jurisdiction  of  the  legal  person  or  corporate  body; 
and  the  appearance  of  a  foreign  corporation  to  the  action  by  an 
attorney,  and  answering  thereto,  amounts  to  such  consent  and 
places  the  defendant  in  court  subject  to  its  jurisdiction.5 

Where  a  proceeding  involves  the  determination  of  the  question 
whether  a  house  built  by  one  on  the  land  of  another  is  real  estate 
or  personal  property,  an  agreement  by  the  parties  that  it  may  be 
considered  as  real  property  is  not  sufficient  to  determine  the  juris- 
diction.6 

§  72.  Over  the  subject-matter. 

"Want  of  jurisdiction  over  the  subject-matter  will  arrest  the  pro- 
ceedings at  any  stage.7  But  all  that  is  necessary  to  the  exercise  of 
jurisdiction,  once  obtained,  is  that  the  subject  to  be  embraced  in 
the  decree  is  something  incidental  to  the  cause  of  action  which  orig- 
inally gave  the  court  jurisdiction,  or  so  closely  connected  with  it  as 
to  render  its  determination  necessary  to  the  final  decision  of  the 
whole  controversy  between  the  parties.  This  principle  is  peculiarly 
applicable  to  the  Texas  system  of  jurisprudence,  the  theory  of 
which  is,  that  a  multiplicity  of  suits  growing  out  of  the  same  subject- 
matter  must  be  avoided,  and  all  controversies,  so  far  as  they  are 
germane  to  the  original  cause  of  action,  settled  in  the  same  suit.8 

Cook,  13  T.  586;  Campbell  v.  Wilson,  6  T.  379;  Pool  v.  Pickett,  8  T.  122;  Griffin 
v.  Brown,  1  App.  C.  C.,  §  1099. 

1  County  of  Galveston  v.  Noble,  56  T.  575, 

2  Brooks  v.  Chatham,  57  T.  31. 

3  York  v.  State,  73  T.  651  (11  S.  W.  Rep.  869), 

4  McMahon  v.  Dennis,  1  App.  C.  C.,  §  1209. 

5  Piedmont  &  A.  L.  Ins.  Co.  v.  Fitzgerald,  1  App.  C.  C.,  §  1346. 
e  Haney  v.  Millikin,  2  App.  C.  C.,  §  223. 

7  Able  v.  Bloomfield,  6  T.  263;  Griffin  v.  Brown,  1  App.  C.  C.,  §  1099. 

8  Chambers  v.  Cannon,  62  T.  293.    It  is  held  that  where  the  district  court  had 
obtained  cognizance  of  a  cause  by  reason  of  an  injunction  sued  out  to  restrain 
the  sale  of  property  levied  on  under  execution,  it  rightfully  retained  it  for  the 
purpose  of  decreeing  damages  for  a  detention  of  the  property  by  the  sheriff 
and  plaintiff  in  execution. 


§  73.]  JTUISDICTION.  81 

Whether  want  of  jurisdiction  arises  from  the  fact  that  the  thing  to 
be  anVotrd  l>y  the  judgment  and  process  of  a  court  is  without  its 
territorial  jurisdiction,  or  without  its  jurisdiction  for  any  other 
reason,  is  unimportant,  for  in  either  case  the  process  is  invalid.1 

It  is  said  that  jurisdiction  over  the  subject-matter  is  complete 
when  suit  has  been  instituted  on  a  cause  of  action  coming  within 
the  defined  authority  of  the  court,  and  that  to  this  extent  the  juris- 
diction is  valid,  though  not  perfect  for  final  disposition  of  the  case 
until  the  parties  defendant  have  been  properly  brought  within  con- 
tn.l  of  the  court  by  means  of  legal  process  in  the  manner  pointed 
out  bv  la\v.  A  judgment  rendered  without  having  jurisdiction 
both  of  the  subject-matter  and  the  parties  is  void.2 

Where  a  person  has  a  right  given  by  a  statute  to  be  a  member  of 
a  society  created  by  the  statute,  the  courts  will  interfere  to  protect 
that  right,  regardless  of  the  question  of  property.1  Mandamus  is 
the  proper  remedy  to  restore  a  member  to  rights  and  privileges 
which  are  wrongfully  denied  him.4 

§  73.  Jurisdiction  over  the  person. 

Jurisdiction  to  render  a  judgment  can  be  acquired  only  by  com- 
pliance with  what  the  law  prescribes  shall  be  done  to  confer  it,  and, 
without  a  substantial  compliance  with  this,  power  to  render  a  judg- 
ment does  not  exist.*  Jurisdiction  is  acquire^  over  a  plaintiff  by 
his  voluntary  submission  of  a  cause  of  action  to  the  court,  and  one 
instituting  proceedings  for  the  revision  of  the  action  of  an  inferior 
court  thereby  gives  to  the  court  exercising  appellate  or  revisory 
power  jurisdiction  over  his  person.  Jurisdiction  over  a  defendant 
is  acquired  by  his  voluntary  appearance  or  the  service  upon  him  of 
such  process  as  the  law  provides.6 

i  Tex.  &  Pac.  Ry.  Ca  v.  Gay,  86  T.  571  (26  S.  W.  Rep.  599V 

»G.,  H.  &  a  A.  Ry.  Ca  v.  McTiegue,  1  App.  G  C.,  §  457. 

»  Manning  v.  San  Antonio  Club,  63  T.  166. 

4Screwmen's  Benev.  Ass'n  v.  Benson,  76  T.  553  (13  &  W.  Rep.  379). 

•  O.,  C  &  a  F.  Ry.  Co.  v.  Rawlins,  80  T.  579  (16  a  W.  Rep.  430);  R  a  124 A. 

•Glass  v.  Smith,  66  T.  548  (2  a  W.  Rep.  195);  Womack  v.  Shelton.  31  T 
Tulane  v.  McKee,  10  T.  355.  A  defendant  was  sued  in  a  county  other  than  that 
of  his  residence  to  rescind  a  parol  contract  alleged  to  have  been  induced  by  de- 
f i- p. hint's  fraudulent  representations  made  in  the  county  in  which  the  suit  was 
brought  The  petition  set  forth  properly  the  county  of  defendant's  residence. 
The  defendant  pl'-aded  to  the  jurisdiction,  under  oath,  on  the  ground  only  that 
>s  sued  out  of  the  county  of  his  residence.  No  action  was  taken  on  the 
plea  to  the  jurisdiction,  but,  after  trial  on  the  merits,  the  court  dismissed  the 
case  for  want  of  jurisdiction,  and  it  was  held:  (1)  Tin-  ri^ht  of  a  defendant  to 
plead  to  the  jurisdiction  of  the  court  when  sued  out  <  ,;ity  of  his  resi- 

dence is  a  personal  privilege,  but,  if  not  exercisid  at  the  proper  time  and  in  a 
proper  manner,  it  dots  not  take  away  the  authority  of  the  court  to  he:u 

mine  the  case  m:i<l<-  ai?iiust  him.    (2)  Though  a  petition  as  to  jur 
allegations  may  be  good  upon  its  face,  yet,  if  the  evidence  shows  on  the  trial 
0 


S2  JURISDICTION.  [§  74. 

If  a  defendant  is  not  brought  before  the  court  by  process  which 
confers  jurisdiction  over  his  person,  and  does  not  voluntarily  appear, 
no  judgment  can  be  rendered  that  will  bind  him  personally  in  an 
ordinary  action  of  debt  when  based  on  the  mere  fact  that  he  has 
property  within  the  reach  of  the  process  of  the  court.1 

A  defendant  submits  to  the  jurisdiction  over  his  person  by  ac- 
cepting or  waiving  service  of  process  in  writing,  or  by  entering 
an  appearance  in  open  court,  or  by  filing  an  answer,  or  by  having 
the  citation  or  service  thereof  quashed  on  motion,  or  by  procuring 
a  reversal  of  the  judgment  for  the  want  of  service  or  because  of  a 
defect  in  the  service.  If  jurisdiction  is  not  obtained  in  one  of  these 
modes,  or  by  actual  service  of  process  as  provided  by  law,  no  judg- 
ment can  be  rendered  against  a  defendant,  except  in  cases  where  it 
is  otherwise  expressly  provided.2 

§  74.  Jurisdiction  over  non-residents. 

A  non-resident  may  be  sued  in  the  courts  of  this  state  without 
bringing  before  the  court  such  of  his  property  and  effects  as  may 
be  found  within  the  state.3  But  service  upon  him  beyond  the  lim- 
its of  the  state,  as  provided  in  articles  1230-34,  Revised  Statutes, 
will  not  authorize  a  personal  judgment  against  him.4  And  a  judg- 
ment rendered  upon  service  by  publication  in  an  attachment  suit  is 
void  save  as  against  the  property  attached.5  No  judgment  for  costs 
can  be  rendered  against  a  non-resident  in  such  cases."  But  whether 
a  non-resident  be  served  personally  beyond  the  limits  of  the  state, 

that  the  court  has  no  power  to  determine  the  real  case  developed,  and  that  the 
jurisdictional  allegations  were  fraudulently  inserted,  the  court  will  dismiss  of 
its  own  motion.  (3)  If  the  evidence  merely  shows  that  the  court  has  no  juris- 
diction over  the  person  of  the  defendant,  the  rule  is  different.  In  such  a  case, 
where  the  petition  contains  fraudulent  allegations  of  fact,  which,  if  true,  would 
bring  the  case  under  one  of  the  exceptions  of  the  statute  which  authorizes  a  de- 
fendant to  be  sued  out  of  the  county  of  his  residence,  then  the  defendant  must 
plead  in  limine  to  the  jurisdiction,  setting  forth  the  true  facts  of  the  case,  and 
alleging  the  fraudulent  purpose  of  the  petition.  (4)  The  plea  of  defendant  set- 
ting forth  his  true  place  of  residence  was  unnecessary.  It  had  already  been 
stated  by  the  plaintiff,  and  it  amounted  to  no  plea.  (5)  When  the  defendant 
went  to  trial  without  asking  action  on  his  plea,  he  thereby  waived  it.  It  was 
error  to  dismiss  the  cause  upon  the  hearing  of  the  evidence  on  the  merits.  Wat- 
son v.  Baker,  67  T.  48. 

1  Stewart  v.  Anderson,  70  T.  588  (8  S.  W.  Rep.  295). 

2  R.  S.  1240-1245. 

3  Rice  v.  Peteet,  60  T.  568  (1  S.  W.  Rep.  657). 

<Pennoyer  v.  Neff,  95  U.  S.  723;  York  v.  State,  73  T.  651  (11  S.  W.  Rep.  869); 
Kimmarle  v.  H.  &  T.  C.  Ry.  Co.,  76  T.  686  (12  S.  W.  Rep.  698);  Maddox  v.  Craig, 
80  T.  600  (16  S.  W.  Rep.  328);  Scott  v.  Streepy,  73  T.  547  (11  S.  W.  Rep.  532);  Franz 
Falk  Brewing  Co.  v.  Hirsch,  78  T.  192  (14  S.  W.  Rep.  450). 

6  Martin  v.  Cobb,  77  T.  544  (14  S.  W.  Rep.  162);  Taliaferro  v.  Butler,  77  T.  578 
(14  S.  W.  Rep.  191);  Kimmarle  v.  H.  &  T.  C.  Ry.  Co.,  76  T.  686  (12  S.  W.  Rep.  698). 

e  Taliaferro  v.  Butler,  77  T.  578  (14  S.  W.  Rep."  191);  Gunter  v.  Armstrong,  2  Civ. 
App.  599  (21  S.  W.  Rep.  607);  Foote  v.  Sewall,  81  T.  659  (17  S.  W.  Rep.  373). 


§  74.]  juKiswcrioN.  83 

or  be  cit*  d  l>v  publication,  an  appearance  for  the  purpose  onlv  (  f 
objecting  to  the  jurisdiction  of  the  court  over  his  person  will 
jurisdiction,  and  operates  as  an  appearance  to  the  next  term.1     A 

dant  \vho  liles  any  defensive  pleading  makes  such  an  appear- 
ance under  the  Revised  Statutes  as  gives  the  court  jurisdiction  over 
his  person  as  fully  as  would  the  issuance  of  proper  citation  and  its 
proper  service  within  the  state.  The  purpose  for  which  an  appear- 

is  made  is  unimportant,  as  is  the  intention  with  which  it  is 

made,  if  the  act  done  is  one  which  the  statute  declares  is  such  as 

-  to  the  court  jurisdiction  to  render  a  personal  judgment  against 

-on  appearing.2 

Whenever  it  appears  from  an  inspection  of  the  record  of  a  court 
of  general  jurisdiction  that  the  defendant  against  whom  a  personal 
decree  or  judgment  has  been  rendered  was  at  the  time  of  the  al- 
leged service  without  the  territorial  limits  of  the  court,  and  that  lie 
never  appeared  in  the  action,  the  presumption  of  jurisdiction  over 
the  person  ceases,  and  the  burden  of  establishing  the  jurisdiction  is 

upon  the  party  who  claims  the  benefit  or  protection  of  the 
judgment  or  decree.  The  presumption  regarding  the  attaching  of 
jurisdiction  exists  when  the  defendant  is  shown  by  the  record  to 
have  been  within  the  jurisdiction  of  the  court.  The  statute  does 
not  contemplate  that  the  seizure  of  the  property  of  a  non-resident 
by  attachment,  in  a  suit  by  publication,  is  notice;  the  notice  must 
be  given  either  by  personal  service  or  by  publication,  and  when  by 
publication  it  will  not  authorize  as  against  a  defendant  not  person- 
ally served,  and  who  makes  no  appearance,  a  judgment  on  a  new 
cause  of  action  set  up  by  way  of  amendment,  and  of  which  no  no- 
tice was  given  by  publication.  The  giving  of  notice  in  the  manner 
pointed  out  by  the  statutes  is  necessary  to  clothe  a  court  with  power 
to  hear  and  determine  the  pending  cause  if  there  be  no  appearance. 
Unless  this  notice  is  legally  given  no  court  has  power  or  jurisdic- 
tion to  order  a  sale  of  the  defendant's  property  though  in  custodia 

by  virtue  of  its  seizure  under  a  valid  attachment.1  It  seems 
to  be  settled  in  this  state,  that,  unless  it  be  made  to  ailirmatively  ap- 

in  a  collateral  proceeding  that  defendant  in  a  suit  by  publica- 
tion was  a  non-resident  at  the  time  of  service,  this  will  not  be 
umed;  but  on  the  contrary  it  will  be  presumed  that 

iKauffman  v.  Wooters,  79  T.  205  (13  S.  W.  R->p.  r,u»:  York  v.  Statr.  7  ;  T.  r,v, 

\V.  Rep.  869);  Sam  v.  Hockstadler,  76  T.  162  (18  S.  \V.  R, -,,.  :,:;:,  .  dEfcna  I.. 

a  v.  Hanna,  81  T.  487  (17  a  W.  Rep.  35);  Pace  v.  Pott.-r.  v.  T.  -i;:i  ,20  S.  W. 

Rep.  928);  Fairbanks  v.  Blum,  2  Civ.  A  pp.  479  (21  S.  W.   !;  |..  \M\\-,-.  M.  x.  Cent. 

Charman.  -4   S.  \V.    Rep.   058;   Pentu-1.1   v.   Harri-.  7   Civ.  .\\<\>.  < 

s.  \v.  Rep 

.  Rep.  869);  St  L.,  A.  &  T.  Ry.  Co.  v.  W! 

70  T.  588  (8  a  W.  Rep.  295). 


84  JURISDICTION.  [§  75. 

citizen  of  the  state.1  Where  an  attachment  is  sued  out  at  the  com 
mencement  of  the  proceedings,  and  levied  upon  the  property  of  a 
non-resident  defendant,  this,  with  notice  to  the  defendant,  either  by 
publication  or  by  personal  service  outside  of  the  state,  will  author- 
ize the  court  to  proceed  to  a  judgment  and  sale  of  the  property, 
though  the  defendant  fails  to  appear.  It  is  due  process  of  law.2 

§  75.  Extra-territorial  jurisdiction. 

There  are  classes  of  cases  in  which  courts  of  chancery  may. 
through  action  on  persons  over  whom  they  have  jurisdiction,  indi- 
rectly affect  title  to  property,  real  or  personal,  situated  in  a  state 
not  within  their  jurisdiction;  e,  g.,  suits  for  specific  performance, 
enforcement  of  trusts,  relief  on  ground  of  fraud,  accounting  in  part- 
nership, etc.  But  Avhere  the  suit  is  strictly  local,  the  subject-matter 
is  specific  property,  and  the  relief  when  granted  is  such  that  it 
must  act  directly  upon  the  subject-matter,  and  not  upon  the  person 
of  the  defendant,  the  jurisdiction  must  be  exercised  in  the  state 
where  the  subject-matter  is  situated.  Jurisdiction  of  a  court  of 
equity  over  the  classes  of  cases  affecting  property  situated  without 
its  local  jurisdiction  exists  only  when  the  relief  sought  is  such  that 
it  may  be  given  by  the  act  of  the  person  over  whom  the  court  ex- 
ercises jurisdiction.  But  if  the  right  arises  from  the  decree  and 
execution  of  its  process,  then  the  court  is  directly  acting  upon  the 
thing  over  which  it  has  not  jurisdiction,  and  in  such  case  the  rule 
is  inoperative.  One  court  cannot  acquire  power  over  property  not 
within  its  territorial  jurisdiction  through  the  action  of  another  court 
having  jurisdiction  where  the  property  is ;  for  the  jurisdiction  of  every 
court  must  depend  on  the  law,  and  cannot  rest  on  the  friendly 
action  of  another  court,  which  is  sometimes  termed  "comity."3 

The  courts  of  another  state  having  jurisdiction  of  the  parties  may 
exercise  jurisdiction  in  a  suit  for  specific  performance  of  a  contract 
for  the  conveyance  of  land  in  Texas.  The  fact  that  they  cannot 
enforce  their  decrees  constitutes  no  objection  to  the  exercise  of  ju- 
risdiction. If  specific  performance  be  decreed,  an  alternative  judg- 
ment for  money  in  lieu  of  the  specific  act  contracted  to  be  per- 
formed may  be  rendered.  If  the  decree  requires  a  conveyance  of 
title  to  land  in  Texas,  it  is  not  effective  unless  the  owner  of  the  land 
makes  the  conveyance  in  person.4 

1  Gunter  v.  Armstrong,  2  Civ.  App.  599  (21  S.  W.  Rep.  607):  Foote  v.  Sevvall,  81 
T.  659  (17  S.  W.  Rep.  373). 

2  Thomson  v.  Shackleford,  6  Civ.  App.  121  (24  S.  W.  Rep.  980);  Stewart  v.  An- 
derson, 70  T.  588  (8  S.  W.  Rep.  295);  Wilson  v.  Zeigler.  44  T.  657. 

3  Tex.  &  Pac.  Ry.  Co.  \»Gay,  86  T.  571  (26  S.  W.  Rep.  599):  Massie  v.  Watts,  6 
Cranch,  148;  Caldwell  v.  Carrington,  9  Pet,  97;  Watkins  v.  Holman,  10  Pet.  26; 
Pennoyer  v.  Xeff,  95  U.  S.  723;  Pom.  Eq.  1318. 

*  Morris  v.  Hand,  70  T.  481  (8  S.  W.  Rep.  210);  Moseby  v.  Burrow,  52  T.  396; 
Davis  v.  Roosevelt,  53  T.  305;  Fryer  v.  Myers,  13  S.  W.  Rep.  1025. 


§  TC.j  ji  in>itii.ri<.x.  S5 

76.  Local  and  transitory  actions. 

It'  tin,-  cause  of  action  U-  one  that  niiirlit  have  arisen  anywl 
it  is  transitory.    If  it  could  only  have  arisen  in  one  place,  it  is  local. 
•r  example,  an  action  of  trespass  to  the  person,  or  for  the  con- 
vt-isioii  of  «:<>,>ds,  is  transitory.     Hut  an  action  for  flooding  particu- 
lar lam  Is  is  local,  because  the  land  can  only  be  flooded  where  it  is 
situated.     For  the  most  part  local  actions  consist  of  those  instituted 
for  the  recovery  of  real  estate,  or  for  injuries  thereto,  or  for 
nients.   That  actions  for  trespass  on  lands  in  a  foreign  country 
not  be  sustained  is  settled  law  in  England  and  in  this  country.     If 
the  cause  of  action  should  be  in  part  transitory,  it  has  been  held 
that  where  the  parties  are  non-residents  and  the  cause  of  action 
originated  beyond  the  limits  of  the  state,  such  facts  would  justify 
the  court  in  refusing  to  entertain  jurisdiction.    Jurisdiction  in  such 
cases  is  entertained  upon  principles  of  comity  and  not  as  a  mutter 
of  right.1 

AY  hen  the  action  is  transitory,  and  is  based  on  personal  injuries, 
recognized  as  such  by  universal  law,  the  suit  may  be  brought  win  Ti- 
the aggressor  is  found,  irrespective  of  the  provisions  of  the  local 
law,  or  whether  there  be  any  law  at  all  in  force  at  the  place  where 
the  wrong  was  inflicted.  AVhen  the  right  of  action  exists  only  l>y 
reason  of  a  statute,  it  can  be  enforced  only  in  the  state  where  the 
statute  has  an  existence  and  where  the  injury  occurred.  The  « 
of  action  must  have  arisen  and  the  remedy  must  bo  pursued  in  the 
same  state,  and  that  must  be  the  state  where  the  law  was  enacted 
and  has  effect.2  A  right  of  action  given  by  the  laws  of  another 
stat«>  cannot  be  enforced  by  suit  in  a  Texas  court,  when  the  right 
claimed  is  denied  at  common  law,  and  is  not  secured  by  the  consti- 
tution or  statutes  of  this  state.3 

The  line  between  local  and  transitory  actions  in  some  of  the  de- 
cide" I  cases  seems  shadowy,  but  in  no  case,  it  is  hold,  can  a  suit  the 
purpose  of  which  is  to  subject  certain  property,  whether  real  or 
,nal,  to  payment  of  a  debt,  or  to  have  it  placed  in  possession  of 

i  Morris  v.  Mo.  Pac.  Ry.  Co.,  78  T.  17  (14  S.  W.  Rep.  238);  Cooley  on  Torts,  471 ; 

Railway  (.  o,  v.  Mill.-r.  I'.i  Midi. 

-  Willis  v.  Ma  Pao,  Ry.  Co..  61  T.  432:  A.,  T.  <fc  S.  F.  Ry.  Co.  v.  Worl.-y.  0',  s  \\ 
K-  l>.  l?s.     A  railway  oompauy  chartered  by  the  state  cannot  be  sued  in  a 
court,  l>y  the  surviving  wife,  for  damages  alleged  to  have  resulted  fr»m  the  neg. 
ligent  killing  of  her  husband  by  the  company  in  the  Indian  Territory,  \vli.-n  no 
i  ( -onii-i -rin-  on  tin-  wit.-  til--  ri^'ht  to  recover  damages  in  such  a  case. 

>Tex.  &  Pao.  Ry.  Co.  v.  Richards,  68  T.  375.  An  action  lies  in  this  state  for 
wrongfully  killing  a  dog  in  another  -tatc.  St.  I...  A.  «v  T.  Hy.  Co.  v.  Holden.  3 
A  pp.  <  :.  The  action  in  such  case  is  authori/.fd  at  common  law.  Brunt 

v.  K.-iubl",  HO  111.  Oil;  Uhlmer  v.  Cronack.  I'M  M;i  ry  v.  Hupps.  1" 

•J.V.i;  I'ark'-r  v.  Am-v.  '-'7  Ala.  4<SO.  The  courts  of  Texas  have  jurixliction  of  an 
action  on  H  contract  hy  a  common  carrier  to  be  performed  iu  another  state. 
Mayer  v.  Brown,  4  App.*C,  C.,  • 


86  JURISDICTION  [§  T6. 

and  under  the  control  of  a  court  for  any  purpose  of  administration. 

u  *     j#^-sv^i 

be  termed  a  ioateLaction.11 

A 

An  action  for  injuries  done  to  land  situated  beyond  the  limits  of 
this  state,  and  when  no  part  of  the  injury  was  committed  or  per- 
formed within  the  state,  is  purely  local  and  cannot  be  maintained 
in  any  court  in  this  state;  the  remedy  must  be  had  in  the  jurisdic- 
tion where  the  land  is  situated.2  But  where  an  injury  was  done  to 

1  Tex.  &  Pac.  Ry.  Co.  v.  Gay,  86  T.  571  (26  S.  W.  Rep.  599).    Under  the  laws  of 
Texas,  as  well  as  from  the  nature  of  the  property  itself,  a  railway  which  includes 
right  of  way,  rails,  and  all  material  placed  thereon,  necessary  structures,  etc., 
must  be  deemed  real  estate,  or  immovable  property.    Rolling  stock  and  other 
movable  property  are  personal  property.    It  seems  that  equal  reasons  exist  why 
the  rolling  stock  as  well  as  the  track  should  be  under  local  jurisdiction.    But 
neither  the  track  nor  the  rolling  stock  of  the  Texas  &  Pacific  Railway  was  in 
the  state  of  Louisiana.  But  even  if  the  Texas  &  Pacific  Railway  Company  owned 
a  continuous  line  from  Texas  to  Louisiana,  a  court  in  Louisiana  could  not,  through 
its  officers,  cross  the  state  line  into  Texas,  or  otherwise  send  its  process  into 
Texas.   Nor  can  it  deliver  possession  of  land  in  another  jurisdiction,  which  want 
of  power  results  from  absence  of  jurisdiction  over  it. 

2  Mo.  Pac.  Ry.  Co.  v.  Cullers,  81  T.  382  (17  S.  W.  Rep.  19).    The  Missouri  Pacific 
Railway  Company,  though  resident  of  Missouri,  transacts  business  in  Texas  and 
where  it  has  business  offices  and  agents.    It  is  subject  to  the  local  jurisdiction 
of  the  courts  of  this  state.     Action  for  the  value  of  hay,  hay  machinery,  house, 
kitchen  and  stable,  and  ranch  implements,  etc.,  destroyed  by  fire  from  alleged 
negligence  of  the  railway  company.    The  fire  was  in  the  Indian  Territory, 
and  it  was  held  the  claim,  so  far  as  it  applied  to  damages  to  the  realty,  was 
local;  and  it  being  alleged  to  have  occurred  without  the  state,  to  that  extent 
the  right  to  recover  did  not  exist  through  the  courts  of  this  state.    In  Pegram 
v.  Owens,  64  T.  475,  suit  was  brought  in  Texas  by  a  non-resident  plaintiff  against 
a  non-resident  defendant,  both  of  whom  had  once  been  partners,  to  prove  up  for 
record  (under  art.  4354,  R.  S.)  an  instrument  in  writing  which  on  its  face  certi- 
fied that  the  defendant  had  given  up  to  plaintiff  all  claims  which  once  belonged 
to  both,  and  also  all  claims  to  land  which  belonged  to  both.     The  firm  did  own 
lands  in  Texas,  but  not  situate  in  the  county  where  the  suit  was  brought.    On 
plea  to  the  jurisdiction  in  the  nature  of  a  plea  in  abatement,  calling  in  question 
the  power  of  the  district  court  to  adjudicate  upon  the  subject-matter,  it  was 
held  that  the  statute  in  such  a  case  does  not  fix  the  venue,  and  the  parties  being 
non-residents,  having  no  domicile  in  Texas,  the  venue  must  be  determined  by 
general  rules  applicable  to  the  matter,  independent  of  statute;  that  the  cause 
of  action  was  not  local,  but  transitory,  though  the  result  of  the  action  might, 
on  some  future  contingency,  affect  the  title  to  land  indirectly.    The  cause  of 
action  was  one  regarding  which  jurisdiction  could  be  exercised  in  the  district 
court  of  any  county  in  which  service  could  be  obtained  on  the  defendant,  or 
where  he  might  appear,  and  by  making  defense  waive  service.     In  W.  U.  Tel. 
Co.  v.  Phillips,  2  Civ.  App.  608  (21  S.  W.  Rep.  638;  30  S.  W.  Rep.  494),  it  is  held 
that  where  a  Texas  railway  corporation,  doing  business  also  in  the  Indian  Ter- 
ritory, is  guilty  of  negligence  there,  the  rules  of  sound  policy  do  not  require 
that  the  courts  of  Texas  should  decline  to  entertain  jurisdiction  of  a  suit  brought 
for  damages  of  a  personal  character  resulting  from  such  negligence,  especially 
where  it  is  not  clear  that  plaintiff  is  not  also  a  citizen  of  Texas.    That  the  laws  of 
the  Indian  Territory,  wherein  the  defendant  corporation  received  for  transmis- 
sion the  telegraph  message  which  it  negligently  failed  there  to  deliver,  do  not 
give  jurisdiction  to  any  of  its  courts  over  suits  for  damages  in  such  cases  (but 
do  not  declare  such  contracts  illegal,  or  render  such  act  of  negligence  lawful), 


§  77.  J  JURISDICTION.  87 

land  lyiiiir  on  the  south  hank  of  the  Rio  Grande  river  in  Mexico, 
by  obstructions  placed  in  the  bed  of  the  river  on  the  Texas  side,  it 
held  that  an  action  would  lie  in  this  state.1 


§  77.  Same;  tort  actions. 

It  is  settled  law  that  the  statute  of  a  state  which  for  a  tort  gives 
a  right  of  action  in  derogation  of  the  common  law,  or  a  right  of 
action  unknown  to  that  law,  can  have  no  extra-territorial  force; 
ami  in  accordance  with  this  rule,  it  has  been  expressly  decided  in 
this  state  that  for  an  injury  inflicted  in  another  state  which  results 
in  the  death  of  the  party  injured,  the  surviving  relatives  have  no 
right  to  recover  in  this  state.  That  the  injured  party  died  within 
this  state  from  injuries  received  elsewhere  does  not  give  a  right  of 
action.  "\Vhether  the  wrong  suffered  is  actionable  is  determined 
by  the  law  of  the  place  where  the  injury  was  inflicted,  and  the  resi- 
dence of  the  deceased  or  the  place  of  his  death  is  immaterial.2  The 
right  of  action  is  conferred  by  statute,  and  the  cause  of  action  must 
have  arisrn  and  the  remedy  must  be  pursued  in  the  same  state,  and 
that  must  be  the  state  where  the  law  was  enacted  and  has  effect. 
The  government  exercising  authority  in  the  locality  where  the  act 
was  committed  is  the  only  one  to  determine  and  provide  whether 
or  not  such  an  act  shall  be  a  good  ground  for  suit  in  behalf  of  any 
one,  and  to  name  the  parties  in  whom  the  right  of  action  shall 
exist.  It  is  not  the  mere  giving  a  remedy  for  a  right  previously 
possessed,  but  it  is  the  creation  of  a  right  itself  in  certain  persons 
which  before  belonged  to  no  one  whatever.3 

will  not  deprive  the  injured  party  of  all  right  and  remedy  elsewhere  for  the  vio- 
lation of  the  contract,  or  for  damages  for  personal  injuries,  recognized  as  such 
by  universal  law,  resulting  from  such  negligence;  and  the  defendant  being  a 
Texas  corporation,  and  the  contract  with  which  it  identified  itself  by  receiving 
the  message  having  been  entered  into  by  its  connecting  line  in  Texas,  the  courts 
of  this  state  will  not  withhold  redress  for  its  violation. 

1  Armendiaz  v.  Stillman,  54  T.  62& 

2  De  Harn  v.  Railway  Co.,  86  T,  68  (23  S.  W.  Rep.  381).    This  was  an  action  in 
the  district  court  of  Nueces  county  by  a  mother  against  the  railway  company 
for  negligently  causing  the  death  of  her  son.    It  was  alleged  in  the  petition 
that  the  injuries  were  inflicted  in  the  republic  of  Mexico,  but  that  the  son  died 
in  Texas,  and  it  was  held  that  a  demurrer  to  the  petition  was  properly  sus- 
tained. 

>  Willis  v.  Mo.  Pac.  Ry.  Co.,  61  T.  432;  St  L.,  I.  M.  &  S.  Ry.  Co.  v.  McCormick, 
71  T.  MO.  In  Helt  v.  G.,  C.  &  S.  F.  Ry.  Co.,  4  Civ.  App.  231  (22  a  W.  Rep.  1062),  it 
was  li'-l.l  that  ju-lii-ial  knowledge  is  taken  of  the  laws  in  force  in  the  Indian 
Territory  l>y  virtue  of  the  act  of  congress  which  adopted  as  such  laws  certain 
sections  of  Mansfield's  Digest,  and  that  it  was  the  intention  of  congress  to  adopt, 
as  a  law  for  that  territory,  the  .  \rkan-as  statute  whieh  gave  a  right  of  action 
for  an  injury  resulting  in  death;  that  the  Arkansas  statute,  in  lorre  in  the 
Indian  Territory,  which  gives  a  right  of  action  for  an  injury  resulting  in  death, 
is  so  unlike  our  statute  that  it  will  not  here  be  enforced.  Our  statute  Diving  a 
right  of  action  for  an  injury  resulting  in  death  does  not  confer  the  right  in  re- 


88  JURISDICTION.  [§  78. 

§78.  Fraud  on  the  jurisdiction. 

"Where  the  defendant  believes  and  claims  that  the  plaintiff  has 
attempted  a  fraud  on  the  jurisdiction,  by  fictitious  allegations  in  his 
petition,  made  for  the  purpose  of  showing  a  case  within  the  juris- 
diction of  the  court,  over  either  the  person  or  the  subject-matter, 
and  the  attempted  fraud  is  not  apparent  in  the  pleadings  of  the 
plaintiff,  the  facts  showing  the  fraud  must  be  alleged  in  the  answer, 
as  are  other  defenses,  and  submitted  as  an  issue  to  the  jury  under 
appropriate  instructions.1  It  is  not  sufficient  to  except ;  and  where 
an  exception  is  made  and  overruled,  the  matter  will  not  be  noticed 
on  appeal,  there  being  no  plea  or  evidence  making  the  issue.2  On 
such  an  issue  it  does  not  necessarily  follow  that  because  the  plaintiff 
in  his  petition  claimed  damages  in  excess  of  the  minimum  jurisdic- 
tion of  the  court  and  recovered  an  amount  less  than  such  minimum, 
the  amount  claimed  was  fraudulently  stated  to  secure  jurisdiction.3 
In  the  absence  of  a  plea  and  evidence  sustaining  it,  the  court  may 
render  judgment  for  any  amount  found  to  be  due,  however  small.4 

As  a  general  rule,  in  actions  ex  contractu  the  question  of  jurisdic- 
tion is  determined  by  the  amount  of  damages  claimed  in  the  peti- 
tion, and  not  by  the  amount  recovered.  But  where  it  appears  that 
the  party  claims  damages  not  recoverable  under  the  facts  and  cir- 
cumstances of  the  case,  and  that  this  was  done  for  the  purpose  of 
conferring  jurisdiction  where  it  would  not  attach  if  the  demand  had 
been  properly  stated,  the  cause  will  be  dismissed.  However,  if 
there  be  a  reasonable  doubt  as  to  whether  the  damages  claimed  are 
or  are  not  recoverable,  and  where  the  party  might  have  had  rea- 
sonable ground  for  believing  that  he  would  recover  an  amount  suf- 
ficient to  confer  jurisdiction,  the  case  will  not  be  dismissed,  and  in 
all  doubtful  cases  of  this  kind  all  presumptions  will  be  in  favor  of 
jurisdiction.5  Because  a  plaintiff  swore  to  a  sum  less  than  that  for 

spect  to  injuries  which  occur  outside  of  this  state;  and  it  makes  no  difference 
that  the  wrong-doer  was  a  corporation  chartered  by  and  domiciled  in  this  state, 
or  that  the  negligence  causing  the  injury  was  a  breach  of  a  contract  entered 
into  in  this  state,  or  that  the  decedent  was  brought  into  this  state  while  living 
and  here  died. 

U.  &  G.  N.  Ry.  Co.  v.  Nicholson,  61  T.  550;  Dwyer  v.  Bassett,  63  T.  274;  Roper 
v.  Brady,  80  T.  588  (16  S.  W.  Rep.  434);  Bates  v.  Van  Pelt,  1  Civ.  App.  185  (20  S. 
W.  Rep.  949);  Seville  v.  Rush,  25  S.  W.  Rep.  1022;  Carro  v.  Carro,  60  T.  395. 

2  Roper  v.  Brady,  80  T.  588  (16  S.  W.  Rep.  434). 

3 1.  &  G.  N.  Ry.  Co.  v.  Nicholson,  61  T.  550. 

« Bates  v.  Van  Pelt,  1  Civ.  App.  185  (20  S.  W.  Rep.  949). 

8  Lay  v.  Blankenship,  2  U.  C.  272.  In  an  action  by  the  defendant  in  attach- 
ment against  the  officer  making  the  seizure,  and  the  attachment  creditor  resid- 
ing in  another  county,  and  brought  in  the  county  where  the  seizure  and  sale 
were  made,  it  was  alleged  in  the  petition  that  by  collusion  between  the  officer 
and  the  attaching  creditors  an  excessive  levy  was  made,  and  the  goods  sold  in 
bulk,  etc.,  for  the  purpose  of  injui'ing  the  defendant.  These  allegations  prima 
facie  gave  jurisdiction  over  the  non-resident  defendant;  but  by  plea  alleging 


§  78.]  Jt  KISDICTIOX. 

•\\hich  he  had  sued,  and  less  than  the  jurisdiction  of  the  court,  was 
not  conclusive  that  fraud  had  been  committed  on  the  juristl 
of  the  court,  and  it  was  not  error  to  refuse  to  allow  defendant  to 
amend  his  answer  setting  up  fraud  on  the  jurisdiction.1 

In  a  case  admitting  of  reasonable  doubt  as  to  whether  the  amount 

in  controversy  is  within  the  jurisdiction  of  the  court,  and  where  the 

plaintiff  miyht  have  had  reasonable  grounds  to  believe  that  he  could 

>or  a  sum  within  the  jurisdiction  of  the  court,  the  case  will  not 

;  all  intendments,  in  a  doubtful  case,  are  in  favor  of 

the  jurisdiction.* 

that  the  allegations  were  fraudulently  made  forthe  purpose  of  conferring  juris- 
li.-tinii,  followed  by  issue  and  proof  of  the  fraudulent  character  of  the  allega- 
tions, the  suit  might  be  abated  as  against  the  creditor  residing  in  another 
county.    Blum  v.  Strong,  71  T.  331  (6  a  W.  Rep.  167). 

1  Johnson  v.  Borden,  25  a  W.  Rep.  1131. 

2  Gill  v.  Jackson,  3  App.  C.  C.,  §  355;  Dwyer  v.  Bassett,  63  T.  274;  L  &  O.  N. 
Ry.  Co.  v.  Nicholson,  61  T.  530.     Where  fraud  on  the  jurisdiction  is  pleaded,  the 
test  by  which  to  determine  the  question  is  whether  the  averments,  on  their 
face  showing  jurisdiction,  were  yet  fraudulently  made;  that  is,  in  bad  faith 
and  for  the  purpose  of  deceiving.    G.,  C.  &  S.  F.  Ry.  Co.  v.  Wilm,  28  S.  W.  Rep. 


CHAPTEK  IV. 

JURISDICTION  AND  POWERS  OF  THE  SUPREME  COURT  AND  COURTS 

OF  CIVIL  APPEALS. 


79.  Appellate  jurisdiction  of  the  su- 

preme court. 

80.  Findings  of  fact  by  courts  of  civil 

appeals. 

81.  Supreme  court  may  look  beyond 

the  conclusions  of  fact. 

82.  Decisions  on  the  validity  of  a  stat- 

ute, or  the  construction  and  ap- 
plication of  the  constitution. 

83.  Cases  in  which  a  county  court  has 

jurisdiction. 

84  Where  a  judgment  of  a  court  of 
civil  appeals  practically  settles 
the  case. 

85.  Conflicting  decisions  of  courts  of 

civil  appeals. 

86.  Where  a  judge  of  a  court  of  civil 

appeals  dissents. 

87.  Cases  of  boundary. 
83.  Certified  questions. 

89.  Questions  certified  by  the  court 

of  its  own  motion. 

90.  Proceedings  on  certificate  of  dis- 

sent; the  judgment. 


§  91.  Power  of  supreme  court  to  issue 
writs. 

92.  Original  jurisdiction  of  the  su- 

•preme  court. 

93.  Jurisdiction  of  courts  of  civil  ap- 

peals. 

94  Jurisdiction  of  courts  of  civil  ap- 
peals confined  to  civil  cases. 

93.  Jurisdiction  of  courts  of  civil  ap- 
peals of  cases  appealed  from 
justices'  courts. 

96.  Transfer  of  cases  from  one  court 

of  civil  appeals  to  another. 

97.  Quorum  in  supreme  court  and 

court  of  civil  appeals. 

98.  Power  of  court  of  civil  appeals  to 

issue  writs. 

99.  Sessions  of  the  supreme  court. 

100.  Sessions  of  the  courts  of  civil  ap- 

peals. 

101.  Supreme  court  may  make  and  en- 

force rules  of  procedure. 

102.  Contempt  of  court. 


§  79.  Appellate  jurisdiction  of  tho  suproms  court. 

The  supreme  court  has  appellate  jurisdiction  only,  except  as 
herein  specified,  which  is  co-extensive  with  the  limits  of  the  state. 
Its  appellate  jurisdiction  extends  to  questions  of  law  arising  in  cases 
of  which  the  courts  of  civil  appeals  have  appellate  jurisdiction, 
under  such  restrictions  and  regulations  as  the  legislature  may  pre- 
scribe.1 It  is  provided  by  statute  that  the  supreme  court  shall 
have  appellate  jurisdiction  co-extensive  with  the  limits  of  the  state, 
"which  shall  extend  to  questions  of  law  arising  in  all  civil  cases 
of  which  the  courts  of  civil  appeals  have  appellate,  but  not  final, 
jurisdiction." 2 

Cases  are  carried  up  to  the  supreme  court  by  writs  of  error  upon 


1  Const.,  art.  V,  §  a    See  §  88,  infra. 

2  R.  S.  940. 


§  79.]  SUPREME   COURT   AND   COUKTS   OF   CIVIL   APPEALS.  91 

final  judgment,  and  not  on  judgments  reversing  and  remanding 
-'s,  except  in  the  following  cases,  to  wit : 

(1)  Where  the  state  is  a  party  or  where  the  railroad  commission- 
ers are  parties. 

(2)  Cases  which  involve  the  construction  and  application  of  the 
itution  of  the  United  States  or  of  the  state  of  Texas,  or  of  an 

act  of  congress. 

(3)  <  ;i  it'll  involve  the  validity  of  a  statute  of  the  state. 
Cases  involving  the  title  to  a  state  office. 

(5)  Cases  in  which  a  court  of  civil  appeals  overrules  its  own  de- 
ns or  the  decision  of  another  court  of  civil  appeals,  or  of  the 

supreme  court. 

(6)  Cases  in  which  the  judges  of  any  court  of  civil  appeals  may 
disagree. 

Cases  in  which  any  two  of  the  courts  of  civil  appeals  may 
hold  differently  on  the  same  question  of  law. 

-  When  the  judgment  of  the  court  of  civil  appeals  reversing  a 
judgment  practically  settles  the  case,  and  this  fact  is  shown  in  the 
petition  for  writ  of  error,  and  the  attorneys  for  petitioners  shall 
state  that  the  decision  of  the  court  of  civil  appeals  practically  set- 
tles the  case,  in  which  case,  if  the  supreme  court  affirms  the  decis- 
ion of  the  court  of  civil  appeals,  it  shall  also  render  final  judgment 
accordingly.1 

The  judgments  of  the  courts  of  civil  appeals  are  conclusive  in  all 
upon  the  facts  of  the  case;  and  a  judgment  of  such  courts  is 
conclusive  on  fact  and  law  in  the  following  cases,  and  a  writ  of  error 
will  not  be  allowed  thereto  from  the  supreme  court,  to  wit: 

(1)  Any  civil  case  appealed  from  a  county  court  or  from  a  dis- 
trict court  when  under  the  constitution  a  county  court  would  have 
had  original  or  appellate  jurisdiction  to  try  it,  except  in  probate 
matters  and  in  cases  involving  the  revenue  laws  of  the  state  or  the 
validity  of  a  statute. 

All  cases  of  boundary. 
(3)  All  cases  of  slander  and  divorce. 

All  cases  of  contested  elections  of  every  character  other  than 

officers,  except  where  the  validity  of  a  statute  is  atta 
by  the  derision. 

It  is  further  provided  that  the  judgments  of  said  courts  of  civil 
appeal-  >hall  be  final  in  all  appeals  from  interlocutory  orders  ap- 
pointing receivers  or  trustees,  or  such  other  interlocutory  appeals 
as  may  be  allowed  by  law,  and  the  judgment  of  said  court  shall  be 
final  in  all  other  cases  as  to  law  and  facts  except  where  appellate 

1 R  S.  941.  as  amended  by  acta  of  1895,  p.  145.  The  amendment  <-mi-i-ts  of  the 
provision  in  the  eighth  paragraph,  beginning  "and  the  attorneys  for  petitioners 
shall  state,"  etc. 


92  JURISDICTION.  [§  80. 

jurisdiction  is  given  to  the  supreme  court  and  not  made  final  in  said 
courts  of  civil  appeals.1 

It  was  not  the  intention,  by  the  provisions  of  amended  section  3  of 
article  5  of  the  constitution,  to  confer  appellate  jurisdiction  on  the 
supreme  court  over  questions  of  law  in  all  cases  arising  in  a  court 
of  civil  appeals,  and  it  is  held  that  the  legislature  in  restricting  the 
jurisdiction  to  certain  cases,  —  in  making  the  judgments  of  the 
courts  of  civil  appeals  conclusive  in  certain  specified  cases, —  did 
not  exceed  its  authority.3  A  writ  of  error  lies  only  to  a  final  judg- 
ment.3 It  will  lie  to  a  judgment  of  dismissal.4 

§  80.  Findings  of  fact. 

The  judgments  of  the  courts  of  civil  appeals  are  conclusive  in  all 
cases  upon  the  facts  of  the  caso,  and  it  is  held  that  findings  by  the 
court  of  civil  appeals  as  to  locality  of  lines  of  surveys,  and  whether 
surveys  are  adjoining  or  are  detached,  are  findings  of  fact.  Such 
decision  cannot  be  revised  in  the  supreme  court.5 

The  supreme  court  has  no  jurisdiction  where  the  only  question  is 
whether  the  verdict  in  an  action  for  personal  injuries  is  excessive.6 
The  trial  judge  in  overruling  a  motion  for  a  new  trial  expressed  a 
doubt  as  to  the  sufficienc^y  of  the  evidence,  and  it  was  assigned  that 
for  that  reason  it  was  error  not  to  grant  the  motion.  In  determin- 
ing the  question  raised  by  the  assignment  upon  the  court's  ruling 
in  this  particular,  the  court  of  civil  appeals  considered  only  the  evi- 
dence as  shown  by  the  statement  of  facts,  and  not  the  reasons  given 
by  the  judge  for  his  ruling.  It  was  held  that  the  supreme  court 
had  no  jurisdiction  to  revise  the  judgment  of  the  court  of  civil  ap- 
peals.7 The  supreme  court  is  bound  by  the  facts  found  by  the  court 
of  civil  appeals,  at  least  when  the  evidence  is  conflicting.  It  is  the 
province  of  the  jury  first  to  pass  upon  the  facts,  and  the  court  of 
civil  appeals  is  vested  with  authority  to  review  their  finding  thereon ; 
but  the  supreme  court  has  no  such  authority,  if  there  be  any  evi- 
dence to  sustain  the  conclusions  of  the  court  of  civil  appeals.8 

The  refusal  of  the  court  of  civil  appeals  to  dismiss  a  writ  of  error 
for  want  of  diligence  in  obtaining  service  involves  a  finding  of  facts, 
and  will  not  be  revised.9 

On  application  for  a  writ  of  error  it  appeared  that  no  application 

1  R.  8.  996. 

2  Maddox  v.  Covington,  87  T.  454  (29  S.  W.  Rep.  463). 

s  First  Nat.  Bank  of  Montague  v.  Robertson,  85  T.  578  (22  S.  W.  Rep.  936). 

«  Frank  v,  Tatum,  87  T.  204  (25  S.  W.  Rep.  409). 

»R,  S.  996;  Schley  v.  Blum,  85  T.  551  (22  S.  W.  Rep.  667). 

sDillingham  v.  Richards,  87  T,  247  (28  S,  W.  Rep.  272). 

'Mex.  Cent.  Ry,  Co,  v.  Lauricella,  87  T.  277  (28  S.  W.  Rep,  277). 

8  Tex.  &  N.  O.  Ry.  Co.  v,  Echols,  87  T,  339  (28  S.  W.  Rep.  517);  T.  &  P.  Ry.  Co. 
v.  Levine,  87  T.  437  (29  S.  W,  Rep.  466), 

9  First  Nat,  Bank  of  Montague  v,  Robertson,  85  T,  578  (22  S,  W,  Rep,  956), 


§  SO,]  :  I:KMK  COIT.T  AND  COURTS  OF  CIVIL  APPEALS.  93 

•  the  court  of  civil  appeals  for  conclusions  of  fact  or 
la\v,  other  than  what  was  contained  in  the  opinion  of  the  court. 
Tliis  \vas  to  the  effect  that  there  was  evidence,  not  stated,  which 

.ned  the  finding  of  the  district  court  as  to  the  true  locality  <>f 

the  northwest  corner  of  a  grant  of  school  land  made  to  a  county. 

i  the  vital  question  in  the  case.     Regarding  this  statement 

tindinLr  l>y  the  court,  the  supreme  court  had  no  jurisdiction. 

•t  of  the  decision  of  the  court  of  civil  appeals  was  that  the 

finding  of  the  trial  court  on  the  contested  question  of  fact  was  cor- 

and  the  opinion  showed  that  the  ruling  was  made  on  testimony 
other  than  that  on  which  the  applicants  for  the  writ  insisted  that 
the  question  of  fact  should  have  been  differently  decided.1 

In  an  action  for  damages  for  personal  injury,  a  proposition  under 
an  assignment  of  error  was  that  there  was  no  evidence  that  the 
plaintiff  was  ignorant  of  the  dangers  of  the  employment,  and  inex- 
perienced, and  that  defendant  knew  that  he  was  inexperienced. 
The  court  of  civil  appeals  found  that  he  was  inexperienced  and 
iirn«»rant  of  the  dangers  of  the  employment,  and  that  defendant 
knew  these  facts.  There  was  no  error  in  this  that  the  supreme 
court  could  revise.  .Under  another  assignment  the  proposition  was 

.lows:  "There  was  no  evidence  before  the  jury  that  the  air- 
brakes were  in  any  respect  defective.  It  is  a  reversible  error  for 
the  court  to  charge  upon  an  issue  in  support  of  which  there  is  no 
evidence,  as  it  creates  in  the  minds  of  the  jury  an  impression  that, 
in  the  opinion  of  the  court,  there  is  sufficient  evidence  to  warrant  a 
finding  upon  such  issue/' 

The  court  of  civil  appeals  made  no  finding  upon  this  issue  in  its 
conclusions  of  fact,  but  in  the  conclusions  of  law  occurs  this  state- 
ment: "It  is  contended  that  there  was  no  evidence  that  the  air- 
brakes were  in  any  respect  defective.  The  evidence  bearing  upon 
that  issue  was,  in  our  opinion,  extremely  meager.  There  were, 
however,  circumstances  indicating  that  the  air-brakes  were  defect- 
These  circumstances  consist  mainly  in  the  fact  that  they  were 
not  sufficient  to  hold  the  detached  cars,  though  the  latter  were  on 
ground  apparently  level,  or  nearly  so,  and  that  the  air-brake  holding 
the  baggage  car,  on  which  the  work  was  being  done,  was  sufficient 
to  keep  it  stationary."  The  supreme  held  that  these  circumstances 

•  lish  only  the  fact  that  the  cars  moved,  but  do  not  prove  the 

a  of  their  moving;  that  they  constitute  proof  that  the  air- 
brakes did  not  hold  the  cars  on  that  occasion,  but  do  not  prove  that 
this  was  caused  by  a  defect  in  the  brakes,  which  may  have  been 

rfectly  set,  or  from  other  causes  may  have  failed  on  this  occa- 
sion ;  and  that  the  district  court  erred  in  submitting  to  the  jury  the- 

of  defective  brakes,  on  the  state  of  the  evidence,  and  that  the 

1  Mcade  v.  Land  Co,,  85  T.  513  (22  &  W.  Rep.  514). 


94  JURISDICTION.  [§  81. 

court  of  civil  appeals  should  have  reversed  the  judgment  for  that 


error.1 

§  81.  Court  may  look  beyond  the  conclusions  of  fact. 

The  provision  of  law  making  the  judgments  of  the  courts  of  civil 
appeals  conclusive  upon  the  facts  does  not  prohibit  the  supreme 
court  from  looking  beyond  the  conclusions  of  fact  in  determining  a 
case.  "What  is  meant  by  the  provision  is,  that  the  decision  of  the 
court  of  civil  appeals  upon  questions  of  fact  —  questions  upon  which 
there  may  be  a  conflict  in  the  evidence  —  shall  be  final,  and  not  the 
subject  of  review  on  writ  of  error.  Article  967  of  the  Revised  Stat- 
utes provides  that  the  supreme  court,  upon  the  hearing  of  a  case 
brought  up  by  a  writ  of  error,  "  may  require  at  any  time  the  orig- 
inal transcript  to  be  sent  up;"  and  in  pursuance  of  that  authority, 
the  court  adopted  rule  5,  which  directed  that  the  transcript  should 
be  transmitted  in  every  case  in  which  a  writ  of  error  was  granted. 
(The  provision  is  now  found  in  amended  rule  1  of  the  supreme  court 
rules.)  If  it  was  intended  that  the  supreme  court  should  decide  the 
case  upon  the  conclusions  of  law  and  fact  filed  in  the  court  of  civil 
appeals,  the  power  conferred  by  the  provision  in  the  statute  cited 
is  nugatory.  The  purpose  was  to  empower  the  court,  not  to  revise 
the  decision  of  the  court  of  civil  appeals  upon  any  disputed  ques- 
tion of  fact,  but  to  enable  it  to  decide  all  issues  presented  for  its 
determination,  in  the  light  of  the  pleadings  and  of  every  fact  estab- 
lished either  by  the  undisputed  evidence  or  the  conclusions  of  the 
appellate  court,  upon  the  conflicting  evidence. 

The  supreme  court  presents  the  matter  thus :  "  It  is  not  to  be 
presumed  that  a  court  of  civil  appeals  will  intentionally  avoid  in  its 
statement  of  the  case  any  fact  material  to  its  determination.  But 
in  the  view  they  take  of  the  law,  a  fact  may  appear  to  them  imrna- 
'terial,  which  in  the  opinion  of  this  court  may  have  an  important 
bearing  upon  the  determination  of  the  cause.  If  there  should  be  a 
conflict  in  the  testimony  as  to  the  question  whether  a  certain  thing 
be  black  or  white,  and  the  court  of  civil  appeals  finds  that  it  was 
white,  this  court  is  bound  by  that  finding.  But  if  the  undisputed 
evidence  show  that  it  was  black,  and  that  court,  not  being  impressed 
with  the  materiality  of  the  fact,  should  inadvertently  state  that  it 
was  white,  it  would  be  an  unreasonable  rule  that  would  withhold 
from  this  court  the  power  to  correct  the  error  and  decide  according 
to  the  evidence,  in  the  event  it  should  deem  the  fact  material  to  a 
proper  disposition  of  the  cause." 2 

1 ».,  G  &  8.  F.  Ry.  Co.  v.  Kizziah,  86  T.  81  (23  a  W.  Rep.  578).  The  supreme 
court  cannot  determine  a  question  of  fact  which  ought  to  have  been  decided  by 
the  court  of  civil  appeals,  but  will  remand  the  case  to  tliat  court  to  have  the 
question  determined.  Cruger  v.  McCracken.  87  T.  584  (30  S.  W.  Rep.  537). 

2  Clarendon  Land  Inv.  Co.  v.  McClelland,  86  T.  179  (23  S.  W.  Rep.  576,  1100). 


§  82.]  SUPREME   OOUKT    AND   COURTS    L>F    CIVIL    AIM'KALS. 

The  supreme  court  will  look  to  the  uncontroverted  testimony,  as 
shown  in  the  record,  for  a  full  understanding  of  the  question  to  be 
derided,  u  li.-re  the  court  of  civil  appeals  omits  to  present  in  its  find- 
ings some  of  the  facts  that  so  appear.1  '  But  the  correctness  of  the 
conclusions  of  the  court  of  civil  appeals  upon  the  facts  will  not  be 
inquired  into,  when  it  is  not  claimed  that  there  is  no  evidence  to 
support  tin-  findings.2  If  there  be  no  evidence  to  support  a  finding. 
the  finding  may  be  disregarded;  but  where  there  is  only  a  conflict 
idence  the  findings  are  conclusive.  "Where  it  is  asserted  in  the 
application  fora  writ  of  error  that  there  was  no  evidence  to  sustain 
of  the  material  findings,  but  the  application  does  not  attempt 
to  set  out  the  evidence,  credence  must  be  given  to  the  findings 
made.  In  such  case  the  presumption  is  that  the  evidence  sustains 
the  finding,  and  an  application  seeking  to  rebut  this  must  show  that 
there  was  no  evidence,  or  rather  what  the  evidence  was.* 

§82.  Decision  on  the  validity  of  a  statute,  or  the  construction  and 
application  of  the  constitution. 

A  writ  of  error  will  lie  to  a  judgment  of  a  court  of  civil  appeals 
which  reverses  and  remands  a  cause,  when  the  case  involves  the 
construction  and  application  of  the  constitution  of  the  United  States 
or  of  the  state  of  Texas,  or  of  an  act  of  congress,  or  the  validity  of 
a  statute  of  the  state.4 

A  suit  involving  the  construction  and  application  of  a  statute  does 
not  involve  the  validity  of  such  statute.*  A  question  whether  two 
judges  of  a  court  of  civil  appeals  constitute  a  lawful  court  when  the 
other  is  disqualified  involves  the  construction  of  the  constitution  of 
the  state,  and  a  writ  of  error  will  lie  to  revise  a  judgment  reversing 
and  remanding  the  cause.  It  was  said  to  be  a  difficult  question  to 
determine  whether  the  legislature  intended  to  confer  jurisdiction 
upon  the  supreme  court  when  the  constitutional  question  does  not 
arise  on  the  merits  of  the  case,  but  grows  out  of  some  matter  of 
procedure  in  the  court  of  civil  appeals.  But  it  is  held  that,  from 
the  commencement  of  every  suit  until  its  final  termination,  ques- 
tions of  procedure  may  arise  which  materially  affect  the  results  of 
the  suit,  but  which  are  in  no  way  involved  in  the  merits  of  the  case; 
that  when  such  a  question  has  been  erroneously  decided  in  the  trial 
court  the  decision  may  be  revised  in  the  court  of  civil  appeals,  and 
the  error  may  demand  a  reversal  of  the  judgment;  if,  however,  that 
court  should  affirm  the  judgment,  notwithstanding  such  error,  the 

I G..  H.  &  W.  Ry.  Ca  v.  Lacy,  86  T.  244  (24  a  W.  Rep.  260). 
'Sanborn  v.  Murphy.  80  T.  487  (25  S.  W.  Rep.  610). 

Bauraan  v.  Jaffray,  86  T.  017  (26  S.  W.  Rep.  894). 
«R.a941. 

M.,  K.  &  T.  Ry.  Co.  v.  Trinity  County  Lumber  Co,  85  T.  IQ'>  '.  Rep. 


96  JURISDICTION.  [§  83. 

supreme  court,  in  a  case  in  which  the  judgment  is  not  made  final 
by  statute,  would  have  jurisdiction  to  revise  the  error  and  to  render 
such  judgment  as  the  court  of  civil  appeals  ought  to  have  rendered.1 
AVhere  a  judge  of  the  court  of  civil  appeals  does  not  sit  in  a  case,  a 
question  as  to  his  disqualification  does  not  give  jurisdiction  to  the 
supreme  court  by  writ  of  error;  the  validity  of  the  action  of  the 
other  two  judges  does  not  depend  upon  his  sitting  or  refusing  to  sit.2 
The  supreme  court  has  no  jurisdiction  to  revise  a  judgment  of  the 
court  of  civil  appeals  affirming  a  judgment  of  a  county  court,  where 
the  case  is  one  involving  the  construction  and  application  of  a  stat- 
ute, but  not  its  validity.3 

§  83.  Cases  in  whioh  a  county  court  has  jurisdiction. 

Under  articles  940  and  998  of  the  Revised  Statutes,  a  writ  of  error 
does  not  lie  to  the  court  of  civil  appeals  in  a  case  for  debt,  -where 
the  amount  in  controversy  was  within  the  constitutional  jurisdic- 
tion of  the  county  court,  although  suit  was  brought  in  the  district 
court  having  jurisdiction  in  the  county  in  such  cases.  The  rule  in 
article  996,  subdivision  3,  is  that  the  judgment  of  the  courts  of  civil 
appeals  is  conclusive  in  all  cases  upon  the  facts  of  the  case,  and  a 
judgment  of  such  courts  is  conclusive  on  facts  and  law  in  any  civil 
case  appealed  from  a  county  court  or  from  a  district  court  when 
under  the  constitution  a  county  court  would  have  had  original  or 
appellate  jurisdiction  to  try  it,  except,  etc.  This  controls  the  ex- 
ception in  article  941  of  the  Revised  Statutes,  in  the  grant  to  the  su- 
preme court  of  jurisdiction  where  the  judgment  in  the  court  belo\v 
may  have  been  reversed  and  the  cause  remanded  by  a  court  of  civil 
appeals,  in  a  case  which  involves  the  construction  of  an  act  of  con- 
gress. That  is,  a  judgment  of  a  court  of  civil  appeals  which 
reverses  and  remands  a  cause  is  final  in  a  case  involving  the  con- 
struction of  an  act  of  congress,  where  the  amount  involved  was 
within  the  jurisdiction  of  the  county  courts.  Suit  by  a  railway 
company  for  §283.03  for  freight  was  brought  in  the  district  court 
of  Trinity  county  by  virtue  of  a  statute  which  gives  to  that  court 
in  that  county  the  jurisdiction  which  is  conferred  by  the  constitu- 
tion upon  the  county  courts.  In  such  case  the  judgment  of  the 
court  of  civil  appeals  in  reversing  the  judgment  of  the  trial  court 
and  rendering  final  judgment  for  the  full  amount  claimed  was  final 
and  conclusive,  and  over  such  judgment  the  supreme  court  has  no 
control. 

iCity  of  Austin  v.  Nalle,  85  T.  520  (22  S.  W.  Rep.  668,  960). 

2  Holt  v.  Maverick,  86  T.  457  (25  S.  W.  Rep.  607). 

3  Matthews  Lumber  Co.  v.  Harden,  87  T.  639  (30  S.  W.  Rep.  898).    The  supreme 
court  took  jurisdiction  of  a  case  in  which  was  involved  the  validity  of  article 
826  of  the  Revised  Statutes  as  applied  to  interstate  shipments  of  live-stock. 
G.,  C.  &  S.  F.  Ry.  Co.  v.  Gray,  87  T.  312  (28  S.  W.  Rep.  280).     • 


•§  83.]  I:T  AND  COURTS  OF  CIVIL  \\-\-\  97 

The  statutes  lierv  under  discussion  provide  (1 )  that  writs  of  error 
shall  issue  to  the  courts  of  civil  appeals  upon  linal  judgments,  but 
not  on  judgments  reversing  and  remanding  a  cause,  except  in  cer- 
tain enumerated  cases.  (2)  That  the  judgments  of  the  courts  of 
civil  appeals  -diall  In'  conclusive  in  all  cases  upon  the  facts  of  the 
That  their  judgments  shall  be  conclusive  on  facts  and 
law  iu  certain  specified  cases.1  It  seems  to  folio w,  therefore,  and  t ho 
decision  appears  to  be  to  that  effect,  that  if  the  case  is  one  in  which 
the  judgment  is  made  conclusive  on  facts  and  law,  a  writ  of  error 
will  not  lie  though  the  case  is  one  in  which  it  is  provided  that  the 
writ  may  lie  from  a  judgment  reversing  and  remanding  the  cause. 
Thus,  it'  the  case  be  one  involving  the  validity  of  a  statute  of  tho 
state,  a  writ  of  error  may  lie  to  revise  a  judgment  reversing  and 
remanding  the  cause,  unless  it  be  a  case  of  boundary,  or  of  slander, 
«»r  divorce,  or  any  other  character  of  case  in  which  it  is  declared 
that  a  writ  of  error  shall  not  be  allowed. - 

Where  a  case  was  tried  below  in  the  district  court,  the  applica- 
tion for  a  writ  of  error  must  show  that  it  was  brought  to  recover 
a  sum  beyond  the  jurisdiction  of  the  county  court;  otherwise  the 
petition  will  be  dismissed.3  AVhere  a  case  is  tried  in  the  district 
court  which  might  have  been  brought  in  the  county  court,  if  it  is 
not  a  case  involving  the  revenue  laws  of  the  state  or  the  validity 
of  a  statute,  the  judgment  of  the  court  of  civil  appeals  is  final. 
Where  the  same  property  is  attached  in  a  justice's  court  and  in  a 
•county  court,  the  latter  court,  under  the  power  to  issue  writs  to 
protect  its  jurisdiction,  has  power  to  issue  an  injunction  to  enjoin 
;i  sale,  of  the  property  in  the  justice's  court,  the  attachment  in  the 
latter  being  alleged  to  be  void;  and  where  the  injunction  in  such  a 
\B  sued  out  in  a  district  court,  the  supreme  court  has  no  juris- 
diction by  writ  of  error  to  the  court  of  civil  appeals.1 

The  county  court  has  no  jurisdiction  in  a  proceeding  for  the  trial 
of  the  riirht  of  property  where  the  amount  in  controversy  equals  «.r 
••ds  s:>oo,  and  the  supreme  court  has  jurisdiction  by  writ  of 
>r  to  the  court  of  civil  appeals.5 

A  proceeding  by  information  in  the  nature  of  quo  warrnnt»  has 
for  its  object  the  contest  of  an  election,  and  the  supreme  court  has 
no  jurisdiction  where  the  validity  of  a  statute  is  not  involved.6 

1  See  g  79,  supra.  ' 
M.,  K.  &  T.  Ry.  Co.  v.  Trinity  County  Lumber  Co.,  85  T.  405  (31  &  W.  Rep. 

.  C.  &  S.  F.  Ry.  Co.  v.  Buford,  85  T.  430  (21  S.  W.  Rep.  678). 

4  M ly  v.  M,-Kiimii,,!i.  87  T.  260  (2*  S.  \V.  Kep.  279). 

W.-I/..-1  v.  Simon.  91  I  3,  \V.  K,r.   . 

6  State  v.  Thompson,  30  S.  W.  Kep.  1040. 
7 


98  JURISDICTION.  [§  S4. 

$  84.  Where  a  judgment  of  a  court  of  civil  appeals  practically  set- 
tles the  case. 

A  judgment  of  reversal  by  a  court  of  civil  appeals  which  prac- 
tically settles  the  case  may  be  reviewed  by  the  supreme  court  on 
writ  of  error.1 

Judgment  against  a  railway  company  was  rendered  in  the  dis- 
trict court  for  negligently  causing  the  death  of  a  person.  On  ap- 
peal, the  court  of  civil  appeals  reversed  and  remanded  the  case,  on 
the  ground  that  the  facts  proved  did  not  entitle  the  plaintiffs  to 
a  judgment,  and  it  was  held  that  the  supreme  court  had  no  juris- 
diction. What  the  facts  might  be  shown  to  be  on  another  trial  the 
court  could  have  no  knowledge.  The  petition  for  writ  of  error  did 
not  show  or  suggest  that  no  proof  other  than  that  made  on  the 
former  trial  could  be  produced  on  another.  In  such  state  of  the- 
record  it  was  not  shown  that  the  judgment  of  the  court  of  civil  ap- 
peals reversing  the  case  practically  settled  the  case.2 

"Where  one  defendant  in  trespass  to  try  title  claims  the  whole 
tract  of  land  in  controversy,  and  another  defendant  claims  a  distinct 
portion  in  his  own  right,  a  judgment  of  the  court  of  civil  appeals^ 
finding  that  the  title  of  the  defendant  claiming  the  distinct  portion 
passed  by  a  certain  sale,  and  which  reverses  and  remands  the  causer 
does  not  settle  the  case.  In  such  case  the  claims  of  the  defendants 
are  in  conflict  and  are  not  severable,  and  the  decision  does  not  set- 
tle the  controversy.8 

The  law  does  not  authorize  the  writ  where  the  action  of  the  court 
of  civil  appeals  was  upon  the  giving  and  the  refusing  of  instructions, 
or  on  the  exclusion  of  testimony,  where  it  appears  that  the  facts 
upon  which  the  charges  were  based  were  controverted,  or  when 
the  evidence  rejected  was  corroborative,  and  not  likely  to  control 
the  disposition  of  the  case  upon  another  trial.4  Where  the  court  of 
civil  appeals  reverses  and  remands  a  judgment  of  the  district  court 
on  the  ground  of  an  improper  charge  by  the  trial  judge,  the  propri- 
ety of  such  charge  depending  on  the  state  of  the  evidence,  the 
supreme  court,  on  application  for  writ  of  error,  cannot  assume  that 
there  will  or  will  not  be  evidence  on  another  trial  to  make  such 
charge  improper.  Such  action  by  the  court  of  civil  appeals  cannot 
be  said  to  practically  settle  the  case.8 

In  a  suit  for  land,  on  appeal  to  the  court  of  civil  appeals  both 
parties  united  in  asking  the  court  to  construe  a  certain  instrument 
of  conveyance,  and  the  court  reversed  and  remanded  the  case  for 

IRS.  941. 

2G.,  C.  &  S.  F.  Ry.  Co.  v.  Riordan,  85  T.  511  (22  S.  W.  Rep.  514). 

s  Schmidt  v.  Huff,  28  S.  W.  Rep.  1055. 

4  Smith  v.  Wilson,  85  T.  402  (20  S.  W.  Rep.  587). 

*Sanger  v.  Henderson,  85  T.  404  (20  S.  W.  Rep.  915). 


§  85.]  SUPREME   OOUKT   AXD   COURTS   OF   CIVIL   APPEALS.      '  99 

the  purpose  of  taking  testimony  as  to  the  intent  of  the  maker  of 
the  instrument.  It  was  held  that  this  did  not  affect  the  merits  of 
the  case  nor  settle  the  matter  in  controversy.1  So  where  an  appeal 
i.s  taken  from  a  judgment  of  the  district  court  sustaining  a  demurrer 
and  dismissing  the  case,  nothing  is  settled,  for  the  purposes  of  a 
writ  of  error,  by  a  judgment  of  the  court  of  civil  appeals  reversing 
and  remanding  the  cause.2  A  ruling  of  the  court  of  civil  appeals, 
that  the  action  was  barred  before  the  filing  of  an  amendment  which 
set  up  a  new  cause  of  action,  practically  settled  the  case  and  gave 
the  supreme  court  jurisdiction.1 

§  85.  Conflicting  decisions. 

"Where  the  ruling  of  a  court  of  civil  appeals  on  the  subject  of  con- 
tributory negligence  as  a  defense  is  in  conflict  with  a  judgment  of 
a  court  of  civil  appeals  of  another  supreme  judicial  district,  the  su- 
preme court  has  jurisdiction  to  revise  notwithstanding  the  judgment 
of  the  lower  court  was  reversed  and  remanded.4  "When  a  decision 
of  a  court  of  civil  appeals  is  in  conflict  with  other  decisions  of  the 
court,  or  with  a  decision  of  the  supreme  court  or  of  another  court 
of  civil  appeals,  the  supreme  court  has  jurisdiction  to  grant  a  writ 
of  error,  although  the  judgment  be  a  reversal  of  the  trial  court. 
But  a  writ  of  error  will  not  be  issued  unless  the  court  believes  that 
there  was  error  in  the  result  of  the  decision  of  the  court  of  civil  ap- 
peals.1 

"Where  a  decision  of  a  court  of  civil  appeals  is  in  conflict  with  a 
proposition  in  an  opinion  of  the  supreme  court,  the  announcement 
of  which  was  not  necessary  to  a  decision  of  the  case,  there  is  no 
conflict  of  decision,  and  the  supreme  court  is  without  jurisdiction.8 
"Where  a  writ  of  error  is  applied  for  on  the  ground  that  there  is  a 
conflict  of  derision,  the  supreme  court  will  examine  that  point,  and 
if  it  is  of  the  opinion  that  there  is  no  conflict  the  writ  will  be  re- 
i.  The  question  on  such  an  application  is,  it  seems,  whether 
•  is  a  conflict,  not  whether  the  ruling  of  the  court  of  civil  ap- 
peals is  right.7 

The  supreme  court  has  no  jurisdiction  to  grant  a  writ  of  error 

on  the  ground  that  the  decision  complained  of  is  in  conflict  with  a 

-ion  of  another  court  of  civil  appeals,  where  it  has  already,  in  a 

similar  case,  determined  the  point  in  controversy.     It  is  held  that 

»r;al]:ii;l,.-r  v.  M«-IIu-Ji.  V)  T.  440  (21  S.  W.  Rep.  1033). 

I*.  A.  &  T.  Ry.  Co.  v.  Bataell,  86  T.  l''J    J 1  s.  W.  Rep.  504). 
»  Lynch  v.  Ortlieb,  30  S.  W.  Rep.  545  (87  T.  590). 
<  McDonald  v.  I.  &  G.  N.  Ry.  Co.,  86  T.  1  (22  &  W.  Rep.  939);  R  S.  94L 
5  Haas  v.  Kraus,  86  T.  •  >•'•). 

•McCown  v.  Terrell,  H7  T.  47<>    .'.'  >   \V.  Rep.  467). 

•hani.-s-  Nat  Bank  v.  Barker,  29  a  W.  Rep.  284;  Barker  v.  Merchants' Nat 
Bank,  87  T.  435  (29  a  W.  Rep.  234> 


100  JURISDICTION.  [§§  86,  87. 

the  provisions  of  the  statute  on  the  subject  were  inserted  for  the 
purpose  of  enabling  the  supreme  court,  upon  the  first  opportunity, 
to  settle  questions  of  law  upon  which  conflicting  opinions  were  held 
bv  any  of  the  courts  having  appellate  jurisdiction,  so  far,  at  least, 
as  its  opinions  could  settle  such  questions,  but  that  it  was  not  the 
intentioii  to  give  to  the  supreme  court  jurisdiction  in  such  cases 
when  it  has  already  determined  the  point.1 

§  86.  Where  a  judge  of  the  court  of  civil  appeals  dissents. 

The  supreme  court  has  no  jurisdiction  over  cases  in  a  court  of 
civil  appeals  of  which  that  court  has  final  jurisdiction.  The  jurisdic- 
tion arising  from  a  dissent  by  one  of  the  judges  of  the  court  of  civil 
appeals  extends  only  to  cases  over  which  the  jurisdiction  is  not 
final.  A  case  was  tried  in  a  justice  court.  On  appeal  it  was  taken 
to  the  county  court,  and  from  that  court  it  reached  the  court  of 
civil  appeals  and  was  there  affirmed.  One  of  the  judges  dissented 
upon  an  issue  of  fact.  On  application  for  writ  of  error,  and  to 
compel  the  judges  of  the  court  of  civil  appeals  to  certify  the  cause 
to  the  supreme  court,  it  was  held  that  the  supreme  court  had  no 
jurisdiction,  for  the  reasons  that  the  court  of  civil  appeals  had  final 
jurisdiction,  and  because  the  contest  upon  which  the  dissent  existed 
was  upon  an  issue  of  fact.2 

§87.  Cases  of  boundary. 

A  writ  of  error  will  not  lie  to  review  a  judgment  of  a  court  of 
civil  appeals  in  a  case  of  boundary.3 

An  action  was  brought  to  compel  a  surveyor  to  make  a  survey 
and  return  field-notes  of  land,  claimed  by  plaintiff  to  be  vacant, 
and  on  which  he  had  filed  land  certificates.  The  adverse  claimant 
was  made  defendant,  and  his  defense  was  that  certain  surveys 
owned  by  him  were  adjacent  to  each  other,  and  covered  the  land 
filed  upon.  The  plaintiff  insisted  that  the  surveys  owned  by  the 
defendant  were  not  adjoining,  and  he  claimed  that  the  strip  between 
them  was  vacant  and  subject  to  appropriation.  In  such  suit  the 
title  to  the  land  was  involved,  and  the  determination  of  the  lines 
of  the  surveys  owned  by  the  defendant  determined  the  case;  the 
litigation  presented  a  case  of  boundary,  and  the  supreme  court  had 
no  jurisdiction.  Where  the  right  of  parties  to  an  action  involving 
the  title  to  land  depends  solely  on  location,  which  must  be  deter- 
mined by  the  boundaries  of  different  tracts  of  land,  then  we  have 

»  Sturgis  Nat.  Bank  v.  Smyth,  87  T.  649  (30  S.  W.  Rep.  898). 

2  G.,  C.  &  S.  F.  Ey.  Co.  v.  Raraey,  86  T.  455  (25  S.  W.  Rep.  406).    The  statute 
provides  that  the  supreme  court  may  review  a  judgment  of  a  court  of  civil  ap- 
peals reversing  and  remanding  a  cause  where  the  judges  of  the  latter  court  dis- 
agree (R.  S.  941);  also  that  the  judgments  of  the  courts  of  civil  appeals  are  con- 
clusive in  certain  cases.    R.  S.  996.    See  §  79,  supra. 

3  R.  S.  996. 


§  88.]  SUPREME   COURT   AXD   COURTS   OF  CIVIL   APPEALS.  1"! 

wli.it  the  law  design,'-  M  of  boundary.1     The  supreme  c«-urt 

will  not  issue  a  in<in -A//////*  to  compel  a  court  of  civil  appeals  to  file 
conclusions  of  fact  and  law  in  a  boundary  case  atlirmed  by  such 

?•  88.  Certified  questions. 

The  constitution  provides  that,  "until  otherwise  provided  by  law, 
;>pellate  jurisdiction  of  the  supreme  court  shall  extend  to  t|ue>- 
tions  of  law  arising  in  the  cases  in  the  courts  of  civil  appeals  in, 
which  the  judges  of  any  court  of  civil  appeals  may  di- 

.'the  several  courts  of  civil  appeals  may  hold  differently  <>n 
the  same  question  of  law,  or  where  a  statute  of  the  state  is  held 
1."' 

The  statutory  provisions  are  as  follows:  "When  any  one  of  said 
courts  of  civil  appeals  shall  in  any  cause  or  proceeding  render  a  de- 
cision in  which  any  one  of  the  judges  therein  sitting  shall  dissent 
as  to  any  conclusions  of  law  material  to  the  decision  of  the  case, 
said  judge  shall  enter  the  grounds  of  his  dissent  of  record,  and  the 
said  court  of  civil  appeals  shall,  upon  motion  of  the  party  to  the 
cause,  or  on  its  own  motion,  certify  the  point  or  points  of  dissent  to 
the  supreme  court.4 

"  Whenever,  in  any  case  pending  before  the  court  of  civil  apj> 
there  should  arise  an  issue  of  law  which  said  court  should  deem  it 
advisable  to  present  to  the  supreme  court  for  adjudication,  it  shall 
be  the  duty  of  the  presiding  judge  of  said  court  to  certify  the  very 
question  to  be  decided  by  the  supreme  court,  and  during  the  pend- 
ency of  the  decision  by  the  supreme  court  the  cause  in  which  the 
issue  is  raised  shall  be  retained  for  final  adjudication  in  accordance 
with  the  decision  of  the  supreme  court  upon  the  issue  submitted."  ^ 

It  is  probable  that  the  construction  of  the  above  sections  js  not 
yet  fully  settled.  It  cannot  be  contended,  of  course,  that  any  ques- 
tion cap  be  cert i tied  except  a  question  of  law,  but  the  qu< 

1  Schley  v.  Blum,  85  T.  W.  Rep.  »;• 

*  Maddox  v.  Covington,  87  T.  454  (29  S.  W.  Rep.  465). 
'Const,  art.  V,  §a 

*  R  S.  1040. 

*R  S.  1043.    This  section  as  originally  enacted  read  as  follows:  "Whenever, 
in  any  case  pending  before  the  court  of  civil  appeals.  <>f  which  said  court  of 
civil  apjM-als  has  final  jurisdiction,  there  should  arise  an  issue  of  la\v  that  i< 
.  or  presenting  a  question  of  first  iini»r«->-i«u  t<>  the  court,  ami  the  court  of 
civil  appeals  «hould  deem  it  advisiM'-  to  pn---rit  tin-  i-«-ui-  to  the  supreme  court 
for  adjudication,  it  shall  IK.'  the  duty  of  the  presiding  judge  of  -\\.\  court  • 
tify  the  very  <{u*-.tion  to  be  decided  to  the  -upreme  court,  and  during  th- 
en, -v  of  the  decision  by  the  supreme  court  the  cause  in  which  the  ixsne  is  raised 
shall  be  retained  for  final  adjudic.it  ion  in  accordance  with  the  deciMoii  of  the 
supreme  court  upon  the   i^su-   mbmifcfc  ~  •  .  Stat, 

art  1088;  Civil  Code  IW.  art.  luj::. 


JURISDICTION.  [§  88. 

arises,  at  what  stage  of  the  case  may  the  question  be  certified,  and 
whether  any  question  of  law,  in  any  and  all  cases,  may  be  certified. 
The  statutory  provision  is  that  whenever  in  any  case  pending  be- 
fore the  court  of  civil  appeals,  etc.,  and  that  pending  the  decision 
of  the  question  certified  the  cause  shall  be  retained  for  final  adjudi- 
cation. In  one  case  the  supreme  court  answered  the  questions  cer- 
tified without  noticing  the  fact  that  no  judgment,  interlocutory  or 
final,  had  been  entered  in  the  court  of  civil  appeals.  Chief  Justice 
£>tayton  notices  the  point  in  a  dissenting  opinion,  and  holds  thau 
while  it  is  evident  that  the  legislature  intended  to  confer  the  juris- 
diction in  such  cases,  the  intention  is  not  manifest  in  the  provision 
of  the  constitution;  that  such  a  construction  would  make  the  juris- 
diction of  the  two  courts  concurrent,  which  was  never  intended.1 

The  first  paragraph  of  the  syllabus  to  the  case  above  considered 
is  not,  as  it  seems  to  the  writer,  authorized  by  anything  found  either 
in  the  opinion  of  the  court  or  in  the  dissenting  opinion.  It  reads  : 
"This  court  will  take  jurisdiction  of  questions  certified  to  it  as 
novel,  etc.,  by  the  court  of  civil  appeals,  in  cases  in  which  it  has 
final  jurisdiction."  This  point  was  raised  in  a  later  case,  after  the 
amendment  of  1893,  and  it  is  held  that  the  jurisdiction  exists  only  in 
cases  in  which  the  judgments  of  the  courts  of  civil  appeals  are  not 
made  final  and  conclusive.  That  the  law  authorizing  certified  ques- 
tions must  be  construed  in  connection  with  the  law  prescribing  the 
appellate  jurisdiction  of  the  supreme  court,  and  that  the  contention 
that  the  former  law  applies  to  every  case  or  proceeding  in  which  a 
dissent  occurs,  whether  it  be  a  case  over  which  jurisdiction  is  given 
to  the  supreme  court  or  not,  cannot  be  sustained.2  It  will  be  no- 
ticed that  the  act  of  1892,  quoted  in  note  to  §  88,  supra,  did  provide 
that  questions  might  be  certified  in  cases  over  which  the  court  of 
civil  appeals  had  final  jurisdiction. 

The  law  furnishes  simply  a  means  whereby  parties  may  bring 
questions  of  law  before  the  supreme  court  otherwise  than  ,by  writ 
of  error;  but  no  litigant  is  compelled  thus  to  bring  before  that  court 
any  question.  A  party  not  only  may  but  ought  to  refrain  from 
bringing  through  this  means  questions  of  law  on  which  is  dissent, 
if  there  be  other  questions  vital  to  his  rights  which  he  cannot  have 
thus  submitted  to  the  supreme  court.  If  a  court  of  civil  appeals,  on 
its  own  motion,  should  certify  a  question,  it  is  clear  that  a  litigant 
should  not  be  thus  cut  off  from  the  right  to  prosecute  a  writ  of 
error  in  the  case.  But  if  a  party  to  a  cause,  after  a  judgment  has 
been  entered  in  the  court  of  civil  appeals,  to  Avhich  a  writ  of  error 
would  lie,  applies  for  and  obtains  a  certificate  on  a  question  on 

1  Darnell  v.  Lyon,  85  T.  455  (22  S.  W.  Rep.  304,  960). 

2Herf  v.  James,  86  T.  230  (24  S.  W.  Rep.  396);  G.,  C.  &  S.  F.  Ry.  Co.  v.  Rumey, 
86  T.  455  (25  S.  W.  Rep.  406). 


§  SO.]  8UPI:  UT    AM>    (•>    RTS   OF   CIVIL   APPEALS.  103 

which  one  of  the  judges  dissented,  he  cannot  afterwards  have  a 
writ  of  error  t»»  iwise  other  questions  which  were  not  revisable  on 
the  certificate  of  dissent.  lie  waives  his  right  to  the  writ  by  apply- 

for  the  certificate.1 

The  supreme  court  has  no  power  to  revise  any  question  on  which 

the  judges  of  the  court  of  civil  appeals  concur  when  the  case  is 

Jit  up  on  certificate  of  dissent  as  to  other  questions.    Its  juris- 

•n  only  extends  to  the  question  or  questions  upon  which  there 

^ent.    The  certificate  of  dissent  brings  the  matter  before  the 

court  for  a  full  hearing  from  both  sides  upon  the  questions 

•n-concurrence,  without  the  intervention  of  a  writ  of  error.2 

Where  the  action  of  the  supreme  court  upon  one  of  the  certified 

ions  practically  settles  the  litigation,  other  questions  certiiied 

will  not  be  considered.     When  questions  of  law  are  certified  for 

initiation  in  the  first  instance,  the  court  has  no  power  to  pass 

upon  any  questions  except  those  submitted.     Nor  can  it  inquire 

into  their  bearing  upon  the  ultimate  decision  of  the  case.3    In  order 

to  authorize  the  certificate  of  dissent,  the  question  upon  which  the 

jud<_:<  ee  must  be  material  to  the  decision  of  the  case.    If  not 

material,  the  supreme  court  acquires  no  jurisdiction  of  the  appeal 

upon  such  certificate.4 

?'  89.  Questions  certified  by  the  court  of  its  own  motion. 

The  statute  prescribes  that  "  whenever  in  any  case  pending  be- 
fore the  court  of  civil  appeals  there  should  arise  an  issue  of  law 
which  said  court  should  deem  it  advisable  to  present  to  the  supreme 
court  for  adjudication,  it  shall  be  the  duty  of  said  court  to  certify 
the  very  question  to  be  decided  to  the  supreme  court,"  etc.  The 
statutory  rule  is  disregarded  when  the  matter  certified  is  whether 
a  demurrer  was  properly  sustained  in  the  trial  court  in  a  case  in- 
volving many  issues.  Whether  a  petition  is  sufficient  to  maintain 
an  action  is  a  question  of  law;  but  as  is  frequently  the  case,  the 
-ion  of  that  question  involves  the  decision  of  many  and  difficult 
questions  of  law,  and  in  order  that  the  time  of  the  supreme  court 
may  not  be  taken  up  in  deciding  questions  about  which  a  court  of 
civil  appeals  may  have  no  doubt,  and  desires  no  decision,  tliev,- 
courts  are  required  to  certify  —  to  make  certain  or  definite  —  the 

'ii  to  be  decided.     It  was  never  intended  that  ti 
pretne  court  on  certificate  should  determine  what  questions  of  law 
involved  in  a  cause  and  then  decide  them.     To  decide  upon 
questions  involving  the  entire  record,  jurisdiction  was  conferred  on 

i  Campbell  v.  Wiggins,  85  T.  r 

nupbell  v.  Wiggins.  *~>  T.  424  (21  .s.  \V.  K-p.  .VJ9). 
8  Darnell  v.  Ly ......  83  T  :<>4.  960). 

'Mexia  v.  L<-wi>.  -7  T.  C.i7). 


104:  JURISDICTION.  [§  89, 

courts  of  civil  appeals,  and  neither  the  statute  nor  the  constitution 
contemplates  the  exercise  of  such  appellate  jurisdiction  by  the  su- 
preme court  so  long  as  the  case  remains  undecided  by  the  court  of 
civil  appeals.  The  numerous  questions  in 'which  certified  questions 
were  discussed  by  the  supreme  court  of  the  United  States  under 
laws  authorizing  such  jurisdiction  are  reviewed,  and  the  practice  of 
that  court  followed.1  It  was  never  contemplated  that  practically 
all  of  a  complicated  case  should  be  certified.  A  statement  of  the 
pleadings,  and  of  numerous  questions  arising,  with  questions  involv- 
ing  matters  of  law  and  of  fact;  of  pleadings,  of  evidence,  of  con- 
struction of  clauses  in  an  insurance  policy,  of  mode  of  impaneling 
jury,  etc.,  cannot  be  considered  a  compliance  with  the  statute. 
The  United  States  statutes  formerly  in  force  were  as  broad  as  that 
now  in  force  in  this  state,  and  under  those  statutes  such  certificates 
have  been  constantly  refused  consideration.  It  is  not  held  that  sev- 
eral questions  of  law  may  not  be  certified  when  essential  to  the  de- 
cision of  a  case ;  but  it  is  to  be  understood  that  none  other  than 
purely  questions  of  law  can  be  considered ;  that  these  must  be  clearly 
stated;  and  that  in  no  case  does  the  statute  contemplate  that  an  en- 
tire case,  with  questions  controlling  and  dependent,  may  in  effect 
be  thus  transferred  to  the  supreme  court  for  decision.2 

The  supreme  court  will  only  respond  to  such  certified  questions 
in  the  case  as  will  determine  the  litigation.  That  other  questions 
certified  in  a  case  are  of  importance  in  other  cases,  and  such  fact 
appearing  by  certificate,  will  not  alter  the  rule.3 

A  court  of  civil  appeals  certified  the  question :  "  Under  the  plead- 
ings and  evidence  as  stated,  did  the  court  err  in  instructing  the  jury 
to  return  a  verdict  for  defendant?"  A  synopsis  of  the  pleadings, 
and  of  the  evidence  accompanied  the  question.  It  was  held  that 
this  was  the  whole  case,  on  law  and  fact,  and  could  not  be  consid- 
ered. Where  a  bill  of  exceptions  to  the  ruling  of  the  trial  court 
upon  the  evidence  was  certified,  with  a  question  as  to  the  correct- 
ness of  the  ruling  of  the  trial  court  upon  it,  it  was  held  that  the 
question  was  one  of  mixed  law  and  fact,  and  could  not  be  considered, 
even  if  all  the  testimony  in  the  case  was  certified.  So  where  five 
charges  were  set  out  as  having  been  asked  by  the  plaintiff  and  re- 
fused by  the  trial  judge,  with  the  question,  "Do  any  of  the  special 
charges  requested  announce  correct  propositions  of  law  in  this  case ; 
and  if  so,  which  of  them  should  have  been  given  in  charge  to  the 
jury?"  it  was  held  that  this  did  not  state  " the  very  question  to  be 
decided  by  the  supreme  court,"  and  could  not  be  considered.4 

1  Waco  Water  &  Light  Co.  v.  City  of  Waco,  86  T.  661  (2C  S.  W.  Rep.  943):  Union 
Cent.  Life  Ins.  Co.  v.  Chowning,  86  T.  654  (26  S.  W.  Rep.  982). 

2  Kelly-Goodfellow  Shoe  Co.  v.  Liberty  Ins.  Co.,  87  T.  112  (26  S.  W.  Rep.  1063). 
3Moser  v.  Tucker,  87  T.  94  (26  S.  W.  Rep.  1044). 

«Laughlin  v.  Fidelity  Mut.  Ins.  Co.,  87  T.  115  (26  S.  W.  Rep.  1064). 


§§90,91.]       SUPREME   COURT   AND   COURTS   OF   CIVIL    APPEALS.  1  "•"» 

A  certificate  submitted  whether  charges  were  properly  refusal, 
not  showing  that  the  facts  raised  the  issue  affected  by  the  cli.. 
and  the  suprem-.'  court  refused  to  determine  upon  the  propii- 
or  giving  such  instructions.1 

?  00.  Proceedings  on  certificate  of  dissent;  the  judgment. 

When  a  certificate  of  dissent  is  sent  up  by  any  court  of  civil  ap- 
.  it  is  the  duty  of  the  clerk  to  send  up  a  certified  copy  of  the 
conclusions  of  fact  and  law  as  found  by  the  court,  and  the  <|iies- 
of  law  ujxm  which  there  is  a  division,  and  the  original  tran- 
script, if  so  ordered  by  the  supreme  court,  and  thereupon,  if  the 
supivme  court  so  direct,  the  clerk  must  set  down  the  same  for  ariru- 
ment  and  notify  the  attorneys  of  record.  After  the  question  is 
decide.l  the  supreme  court  must  immediately  notify  the  court  of 
civil  appeals  of  their  decision,  which  must  be  entered  as  the  judg- 
ment of  the  court  of  civil  appeal 

1 1 .  Power  of  supreme  court  to  issue  writs. 

The  constitution  provides  that  "the  supreme  court  and  the  jus- 
thereof  shall  have  power  to  issue  writs  of  Jml.  //*  <v,/y/»/x  as  may 
be  prescribed  by  law,  and  under  such  regulations  as  may  be  pre- 
scribed by  law  the  said  court  and  the  justices  thereof  may  issue  the 
writs  of  mand€tmu9t  procedendot  certiorari^  and  such  other  writs  as 
may  be  necessary  to  enforce  its  jurisdiction.  The  legislature  may 
confer  original  jurisdiction  on  the  supreme  court  to  issue  writs  of 
quo  warranto  ami  //«/////»////'/*  in  such  cases  as  may  be  specified.  ex- 

as  airainst  the  governor  of  the  state."* 

The  statutes  on  the  subject  are  as  follows:  "The  supreme  court, 
or  any  justice  thereof,  shall  have  power  to  issue  writs  of  /<///<•  ./.v 
'*  as  may  be  prescribed  by  law:  and  the  said  court,  or  the 
justices  thereof,  may  issue  writs  of  mandamus,  proc»]-  //</<•.  >•>  /•/>'< 
and  all  writs  necessary  to  enforce  the  jurisdiction  of  said  court;  and 
in  tcnn  time  or  vacation  may  issue  writs  of  y/«  //•.//•/••//</«  or  n«m- 
(liin'i*  airainst  any  district  judge  or  officer  of  the  state  government, 

>t  the  governor  of  the  state.4 

••  The  said  court,  or  any  judge  thereof  in  vacation,  may  issue  the 
writ  of  iiniii'Iin.'iiia  to  compel  a  judge  of  the  district  court  to  pro- 
ce,-d  to  trial  and  judgment  in  a  cause,  agreeably  to  the  principles 
and  usages  of  law,  returnable  to  the  supivme  court  on  or  before  the 
first  day  of  the  term,  or  during  the  session  of  the  >ame,  or  before 
any  judge  of  the  said  court,  as  the  nature  of  the  case  may  re<juire.s 

.rtin  v.  T.  &  P.  Ry.  C<x,  87  T.  117  (SO  S.  W.  Rep.  1052). 

s.  ion.  nil-.'. 
•Const..  :irt.  V. 

«RS 

*R  S.94U 


106  JURISDICTION.  [§  91. 

"  All  writs  and  process  issuing  from  the  supreme  court  shall  bear 
the  test  of  the  chief  justice  or  presiding  judge  of  said  court,  and  be 
under  the  seal  of  said  court  and  signed  by  the  clerk  thereof,  and 
may  be  directed  to  the  sheriff  or  any  constable  of  any  county  in 
the  state,  and  shall  be  by  such  officer  executed  according  to  the  de- 
mand thereof,  and  returned  to  the  court  from  which  they  emanated; 
and  whenever  such  writs  or  process  shall  not  be  executed,  the  clerk 
of  the  said  court  is  hereby  authorized  and  required  to  issue  another 
like  process  or  writ  upon  the  application  of  the  party  suing  out  the 
former  writ  or  process  to  the  same  or  any  other  county."  l 

The  extraordinary  writs  may  only  be  used  in  the  supreme  court 
in  cases  of  which  the  court  has  acquired  jurisdiction,  except  in  those 
cases  in  which  original  jurisdiction  is  conferred ;  and  in  a  case  aris- 
ing prior  to  the  amendment  of  the  constitution  creating  the  courts 
of  civil  appeals,  it  was  held  that  they  could  not  be  used  to  set  aside 
orders  made,  or  to  correct  results  transpired,  before  the  appeal  bond 
was  given.2  Having  appellate  jurisdiction  only,  it  can  use  the  writs 
only  to  enforce  that  jurisdiction.  If  the  judgment  below  is  affirmed, 
or  reversed  and  rendered  or  reformed,  the  court  can  see  that  the 
party  in  whose  favor  its  decision  has  been  given  has  the  benefit  of 
all  proceedings  below  necessary  to  enforce  its  judgment.  If  re- 
manded for  a  new  trial,  it  retains  control  until  the  new  trial  is 
allowed  in  accordance  with  its  mandate.  If  reversed  and  sent  down 
to  have  some  special  judgment  rendered  by  the  court  below,  juris- 
diction remains  till  that  particular  judgment  is  entered  up,  and  the 
mandate  of  the  court  obeyed.  For  the  purpose  of  enforcing  all 
such  orders  coming  within  the  appellate  jurisdiction  of  the  court,  it 
may  resort  to  the  writ  of  mandamus  or  any  other  appropriate  writ 
known  to  our  system  of  jurisprudence.3  In  all  cases  decided  before 
the  amendment  of  1891,  it  was  held  that  the  extraordinary  writs 
could  be  used  only  to  enforce  the  jurisdiction  of  the  court,  and  then 
only  under  regulations  prescribed  by  law.  The  authority  to  confer 
original  jurisdiction  to  issue  the  writs  of  quo  warranto  and  man- 
damus was  conferred  by  the  amendment,  and  it  will  hardly  admit 
of  a  doubt  that  the  court  had  no  authority,  aside  from  this  provis- 
ion, to  issue  any  writ  except  to  enforce  its  jurisdiction.  It  was  held 
before  the  amendment  that  a  writ  of  injunction,  not  being  a  process 
necessary  to  enforce  the  jurisdiction  of  the  supreme  court,  could 
not  be  issued  by  that  tribunal,  as  an  original  writ,  to  restrain  a  party 
litigant  during  the  pendency  of  an  appeal.4 

1  R  S.  982. 

2  Churchill  v.  Martin,  65  T.  367. 
»  Wells  v.  Littlefield,  62  T.  28. 

•*  City  of  Laredo  v.  Martin,  52  T.  548.    See,  also,  §  92,  infra. 


§92.]  BUTE  i:T    AND   COURTS   OF   CIVIL   APPEALS.  107 

§  92.  Original  jurisdiction  of  the  supreme  court. 

The  legislature  may  confer  original  jurisdiction  on  tin*  >npreme 
court  to  is>iie  writs  of  </>/,-  //•.// •>•<//, f,>  and  muml'innix  in  such  cases 
as  maybe  specified,  except  as  against  the  governor  of  the  state. 
The  supreme  court  lias  power,  upon  atlidavit  or  otherwise,  as  by 
the  court  may  he  determined,  to  ascertain  such  matters  of  fact  as 
may  lie  nece»ary  to  the  proper  exercise  of  its  jurisdiction.1 

The  supreme  court  has  original  jurisdiction  of  proceedings  for 
the  removal  of  district  judges  for  incompetency,  otlicial  misconduct 
or  neglect  of  dm 

original  jurisdiction  properly  belonging  to  courts  of  equity 
•:ed  in  the  district  court.  The  supreme  court  possesses  no  such 
powers.  Its  jurisdiction  is  appellate,  and  hence,  when  the  aid  of 
equity  is  sought  to  afford  relief  to  which  a  party  is  entitled  airainst 
its  judgments,  the  district  court  and  not  the  supreme  court  is  the 
proper  forum  in  which  to  institute  the  proceedings.3 

In  a  suit  in  which  it  is  not  necessary  either  to  allege  or  prove  the 
value  of  the  things  in  controversy,  it  is  proper  for  an  appellate 
court  to  hear  affidavits  as  to  its  value,  in  order  to  determine  the 
question  of  its  jurisdiction.  So  held  in  a  case  which  was  brought 
in  the  district  court  to  recover  upon  a  note  for  $500  and  attorney's 
fees,  and  to  foreclose  a  lien  upon  personal  property,  the  value  of 
which  did  not  appear  from  the  transcript,  and  there  was  nothing  to 
show  whether  it  was  a  case  of  which  the  county  court  had  jurisdic- 
tion.4 

The  statute  passed  to  carry  into  force  the  constitutional  provision 
standing  at  the  head  of  this  section  confers  power,  either  in  term 
time  or  vacation,  to  issue  writs  of  quo  warranto  or  mandamus 
against  any  district  judge  or  officer  of  the  state  government,  except 
the  governor  of  the  state.5  The  act  annuls,  of  course,  so  far  as  the 
supreme  court  is  concerned,  the  fourth  section  of  the  act  of  1881, 
denying  authority  to  any  court  to  issue  any  mandatory  or  compul- 
sory process  a-:ain>«t  any  officer  of  the  executive  department.8  It 
is  held  that  the  statute  sufficiently  specifies  the  cases  in  which  the 
writs  may  i»ue;  that  the  constitution  has  application  only  to 
in  which  writs  of  <i>n>  warranto  or  maml'iinn*  may  be  the  proper  or 
necessarv  pro<  ess,  and  the  statute  attempts  to  give  jurisdiction  in 
those  classes  of  cases  only,  and  restricts  this  by  designating  classes 
of  persons  against  whom  only  such  writs  may  run  and  such  juris- 
diction be  exercised.7  It  was  not  intended  to  confer  jurisdiction  to 

» Const,  art.  V,  §  3;  R  S.  945. 

*  Const.,  nit.  XV.  <  0;  R  a  3528-3525. 

•Stapleton  v.  \Vil,-,,\.  2  Civ.  App.  542  (21  S.  W.  Rep.  " 

4  Austin  R  E.  &  A.  Co.  v.  Bahn,  87  T.  582  (29  S.  W.  Rep.  646). 

»  R  a  946. 

•R&4861. 

'Pickle  v.  McCall,  86  T.  212  (24  a  W.  Rep.  265). 


108  JURISDICTION.  [§  93. 

try  a  case  on  mandamus  which  involves  the  determination  of  doubt- 
ful questions  of  fact,  nor  in  any  case  unless  the  officer  is  under  legal 
obligation  to  do  the  act  required.1 

§  93.  Jurisdiction  of  courts  of  civil  appeals. 

The  courts  of  civil  appeals  have  appellate  jurisdiction  co-extensive 
with  the  limits  of  their  respective  districts,  which  extends  to  all 
civil  cases  of  which  the  district  courts  or  county  courts  have  orig- 
inal or  appellate  jurisdiction,  under  such  restrictions  and  regula- 
tions as  may  be  prescribed  by  law.  The  decisions  of  said  courts 
are  conclusive  on  all  questions  of  fact  brought  before  them  on  ap- 
peal or  error.  It  is  provided  that  said  courts  shall  have  such  other 
jurisdiction,  original  and  appellate,  as  may  be  prescribed  by  law.2 
The  constitution  also  provides  that  in  all  appeals  from  justices' 
courts  "  there  shall  be  a  trial  de  novo  in  the  county  court,  and  ap- 
peals may  be  prosecuted  from  the  final  judgment  rendered  in  such 
cases  by  the  county  court,  as  well  as  all  cases  civil  and  criminal  of 
which  the  county  court  has  exclusive  or  concurrent  or  original 
jurisdiction  of  civil  appeals,  in  civil  cases  to  the  court  of  civil  appeals, 
and  in  such  criminal  cases  to  the  court  of  criminal  appeals,  with 
such  exceptions  and  under  such  regulations  as  may  be  prescribed 
by  law." 3 

Under  the  statute  the  appellate  jurisdiction  of  the  courts  of  civil 
appeals  extends  to  civil  cases  within  the  limits  of  their  respective 
districts : 

(1)  Of  which  the  district  court  has  original  or  appellate  jurisdic- 
tion. 

(2)  Of  which  the  county  court  has  original  jurisdiction. 

(3)  Of  which  the  county  court  has  appellate  jurisdiction  when  the 
judgment  or  amount  in  controversy  shall  exceed  $100  exclusive  of 
interest  and  costs.4 

The  court  of  civil  appeals  has  jurisdiction  over  cases  coming  from 
the  district  court  without  restriction  as  to  the  amount  in  contro- 
versy. Jurisdiction  was  taken  in  a  case  in  which  a  judgment  was 
rendered  for  $80.5 

1  Teat  v.  McGaughey,  85  T.  478  (22  S.  W.  Rep.  302). 

2  Const.,  art.  V,  §  6. 

3  Const.,  art.  IV,  §  16.    In  the  amended  section  of  the  constitution  of  1876  the 
•word  or  between  the  words  concurrent  and  original  is  not  found.    It  reads,  "of 
which  the  county  court  has  exclusive  or  concurrent  original  jurisdiction."    The 
insertion  of  the  word  is  probably  not  a  mistake  of  the  printer,  as  it  is  found  in 
every  copy  of  the  amendment  examined  by  the  writer.    The  intention  of  course 
is  to  confer  jurisdiction  of  cases  of  which  the  county  courts  have  original  juris- 
diction, whether  exclusive  or  concurrent,  and  the  word  or,  therefore,  ought  to 
be  omitted  before  the  word  original. 

4  R.  S.  996,  1383.    See  g  79,  fnipra. 

6  Cadwallader  v.  Lovece,  29  S.  W.  Rep.  666.  A  court  of  civil  appeals  has  no 
power  to  examine  the  evidence  and  dispose  of  a  case  on  an  issue  of  fact  which 


M  1-1::  n   AM>  .  .11.   AITS 

«5  94.  Jurisdiction  of  courts  of  civil  appeals  confined  to  civil  cases. 

A  proceeding  I iy  /<-//>«'.-  >;>,•/,,/*,  1>\-  a  father,  as  next  friend  of  his 
child,  t<>  determine  the  rightful  custody  of  the  chilil,  is  a  civil 
and  the  court  of  civil  appeals  has  jurisdiction  of  an  appeal  from  the 
judgment  of  the  district  court.  If  it  appears  in  such  a  proceeding 
that  a  peison  is  restrained  l»y  reason  of  a  supposed  violation  of  a 
criminal  law,  or  //"./.-•/'-criminal  la\v,  as  an  offense  against  the  per- 
son, or  contempt  of  court,  then  the  proceeding  must  be  classed  as  a 
criminal  case,  although  upon  the  whole  case  the  court  should  be  of 
opinion  that  the  act  for  which  such  person  is  detained  does  not 
stitute  a  violation  of  such  law,  or  that  the  evidence  is  totally  insutli- 
to  establish  the  act,  or  that  the  supposed  law  does  not  exist. 
or  is  void;  but  if  such  person  is  not  restrained  by  reason  of  some 
supposed  violation  of  law,  then  the  proceeding  must  be  classed  as  a 
civil  case.  It  is  the  cause  of  restraint  which  determines  whether 
the  proceeding  is  civil  or  criminal.1 

Proceedings  on  a  forfeited  bail  bond  are  criminal,  and  a  court  of 
civil  appeals  has  no  jurisdiction.2 

?;  95.  Jurisdiction  of  courts  of  civil  appeals  of  cases  appealed  from 
justices'  courts. 

Unless  in  a  case  appealed  from  a  justice's  court  to  the  county 
court,  the  judgment  rendered  in  the  county  court,  or  the  amount 
in  controversy,  shall  exceed  8100,  exclusive  of  interest  and  costs, 
the  court  of  civil  appeals  is  without  jurisdiction  to  entertain  an  ap- 
peal from  the  county  court.3  The  amount  in  controversy  on  a 
counter-claim,  if  sufficient,  will  confer  appellate  jurisdiction,  al- 
though the  amount  claimed  by  plaintiff  is  less  than  $100.  But  the 
counter-claim  must  be  a  matter  of  controversy ;  and  when  it  appears, 
if  ever  relied  upon,  to  have  been  substantially  abandoned,  and  that 
no  evidence  was  offered  in  support  of  it,  it  will  not  support  an  ap- 
peal.4 

Suit  was  brought  in  a  justice  court  to  recover  on  eight  promis- 
sory notes,  airgregatinu;  sv".  and  to  foreclose  a  lien  upon  one  ><.da 
fountain,  worth  $150,  for  which  the  notes  were  executed.  While  an 
appeal  was  pending  in  the  county  court  the  soda  fountain  was  de- 

>t  submitted  to  the  jury,  and  was  not  a  fact  conceded.    Mexican  N 
Co.  v.  Musette,  7  Civ.  App.  169.    The  jurisdiction  of  a  court  of  <-ivil  apj» 
appellate  only,  and  causes  must  be  decided  upon  the  record  mad*-  in  tli.   l«.v.  r 
«-»urt.    The  statutes  do  not  contemplate  that  allidavits  of  facts  not  in  the  i 
may  U-  entertained,  or  that  they  should  in  anv\\  isc  shape  or  affect  tl 
Maverick  v.  Routh,  7  Civ.  App.  088  ,.':i  S.  W.  Rep.  .V.MJ.  and  -,'ii  id.  1009). 

-rate  v.  Legate,  87  T.  -.'««   ^  s.  W.  i: -p. 
Ueter  v.  State.  86  I 

• '.  iv  s.  F.  By.  Co  r.  i:  •  V  f,  V  ft  w.  Hep.  182;  O..  C.  &  s.   l 

Karmi-r.  :i  Civ.  App.   J.>  $*&  \V.  i;-p.  :•!:•>.    C<,ntni.  C,.,  C.  &S.  F.  Ry.  Co.  V.  \\Yr- 
..-iian.  :'•  Civ.  App.   17^    U  S.  \V.  Rep 
<  Bledsoe  v.  U.,  C.  &  S.  F.  Hy.  App.  280  (25  S.  W.  Rep.  314). 


110  JURISDICTION.  [§§  96-98. 

stroyed  by  fire,  and  when  the  case  was  tried  the  subject  of  contro- 
versy was  the  amount  of  the  notes,  with  interest.  This  amount 
being  less  than  $100,  it  was  held  that  the  court  of  civil  appeals  had 
no  jurisdiction  of  an  appeal  from  the  judgment  of  the  county  court.1 

§  96.  Transfer  of  cases  from  one  court  of  civil  appeals  to  another. 

It  is  made  the  duty  of  the  supreme  court  to  equalize  as  nearly  as 
practicable  the  amount  of  business  upon  the  dockets  of  the  differ- 
ent courts  of  civil  appeals  by  directing  the  transfer  of  cases  from 
such  of  said  courts  as  may  have  the  greater  number  of  cases  upon 
their  dockets  to  those  having  a  less  amount  of  business  upon  their 
dockets ;  such  transfers  to  be  made  at  least  once  a  year,  in  such  man- 
ner and  under  such  rules  and  regulations  as  the  supreme  court  shall 
provide.  The  courts  of  civil  appeals  to  which  such  cases  shall  be 
transferred  shall  have  jurisdiction  of  all  such  cases  transferred 
without  regard  to  the  districts  in  which  such  cases  were  originally 
tried  and  returnable  on  appeal.  Cases  transferred  must  be  taken 
by  consecutive  numbers  in  the  order  in  which  they  stand  upon  the 
docket.2 

§  97.  Quorum  in  supreme  court  and  courts  of  civil  appeals. 

The  supreme  court  consists  of  a  chief  justice  and  two  associate 
justices,  any  two  of  whom,  shall  constitute  a  quorum,  and  the  con- 
currence of  two  judges  is  necessary  to  the  decision  of  a  case.3 

Each  of  the  courts  of  civil  appeals  consists  of  a  chief  justice  and 
two  associate  justices,  and  the  concurrence  of  two  justices  is  neces- 
sary to  the  decision  of  a  case.  "A  majority  of  the  judges  of  the 
several  courts  of  civil  appeals  shall  constitute  a  quorum  for  the 
transaction  of  business." 4 

The  constitution  does  not  prescribe  the  number  of  judges  neces- 
sary to  constitute  a  -quorum  in  the  court  of  civil  appeals.  It  does 
provide  that,  if  any  member  is  disqualified,  the  fact  shall  be  certi- 
fied to  the  go\7ernor,  who  shall  appoint,  etc.  Notwithstanding 
this  provision,  it  is  held  that,  when  only  one  member  is  disqualified, 
the  other  two  constitute  a  lawful  court,  and  may  hear  and  deter- 
mine the  cause.5 

§  98.  Power  of  court  of  civil  appeals  to  issue  writs,  etc. 

The  courts  of  civil  appeals  and  the  judges  thereof  have  power  to 
issue  writs  of  mandamus  and  all  other  writs  necessary  to  enforce 
the  jurisdiction  of  the  court.  They  have  power,  upon  affidavit  or 
otherwise,  as  by  the  court  may  be  thougjit  proper,  to  ascertain  such 

1  Tufts  v.  Hodges,  8  Civ.  App.  240  (28  S.  W.  Rep.  110). 

2  Acts  1895,  p.  79;  R.  S.  994a. 

3  Const,  art.  V,  §  2;  R.  S.  933. 
«  R.  S.  987,  995. 

«  City  of  Austin  v.  Nalle,  85  T.  520  (22  S.  W.  Rep.  668,  960);  Gwin  v.  O'Daniel, 
85  T.  563  (22  S.  W.  Rep.  876). 


§99.]  SUPREME    COURT    AND    COURTS    OF   CIVIL    APPEALS.  Ill 

matters  of  fact  as  may  be  necessary  to  the  proper  exercise  of  their 

liction.  The  said  courts,  or  any  judge  thereof  in  vacation, 
inav  issue  the  writ  of  ii»tn<liuiiu8  to  compel  a  judge  of  the  district 
court  to  proceed  to  trial  and  judgment  in  a  cause  agreeably  to  the 
principles  and  usa^vs  of  law,  returnable  on  or  before  the  first  day 
of  the  next  term,  or  during  the  session  of  the  same,  or  before  any 
judge  of  the  said  court,  as  the  nature  of  the  case  may  require.1 

All  writs  and  process  issuing  from  a  court  of  civil  appeals  must 
bear  the  test  of  the  chief  justice  or  presiding  judge  of  the  court, 
under  the  seal  of  the  court,  and  must  be  signed  by  the  clerk.  All 
such  writs  and  process  must  be  directed  to  the  sheriff  or  any  con- 
stable of  any  county  in  the  state,  and  to  be  by  such  officer  exe- 
cuted according  to  the  command  thereof  and  returned  to  the  court 
from  which  they  emanated,  and  whenever  such  writ  or  process  shall 
not  be  executed,  the  clerk  of  said  court  is  authorized  and  required 
to  issue  another  like  process  or  writ,  upon  tb.e  application  of  the 
party  suing  out  the  former  writ  or  process,  to  the  same  or  any  other 
county. - 

A  court  of  civil  appeals  has  no  power  to. issue  a  writ  of  ma 

to  compel  a  county  judge  to  proceed  to  trial  and  judgment.8 
AVhere  the  want  of  jurisdiction  in  the  court  of  civil  appeals  to 

T  a  judgment  against  a  surety  on  a  superseded*  bond  is  not  ap- 
parent from  the  record,  it  may  afterwards  hear  affidavits  or  other 
evidence,  and,  if  satisfied  that  it  had  no  jurisdiction,  vacate  the 
judgment  as  to  such  surety.  The  suret}T  in  this  case  was  a  married 
woman,  and  the  bond  as  to  her  was  void.4  The  court  may  hear 
evidence  to  show  that  notice  of  appeal  was  given,  when  none  ap- 

-  from  the  transcript,  and,  if  satisfied  that  notice  was  properly 

i,  may  exercise  jurisdiction  of  the  case.5 

?'  99.  Sessions  of  the  supreme  court. 

•  reme  court  holds  one  term  each  year  at  the  city  of  Austin, 
commencing  on  the  first  Monday  in  October  of  each  year,  and  may 
continue  until  the  last  Saturday  in  the  next  June.6 

The  court  may  adjourn  from  day  t»  >  day,  or  for  such  p«-ri.  -d  as  the 

iav  think  necessary  to  the  ends  of  justice  and  tin-  d 
initiation  of  the  business  before  them.     There  shall  be  no  discontin- 
uance-of  any  suit,  process  or  matter  returned  to  or  depending  in 
the  supreme  court,  although  a  quorum  of  the  court  may  not  be  in 

» R  &  997,  998,  1000. 
»RS.  1" 

Tannin  County  v.  Hightower.  29  S.  W.  R.-p.  : 
«Cruger  v.  Mc-Crark.-n.  s?  T.  .V<4  CJ<>  S.  W.  Rep.  537). 

•W.  U.  T.-l.  «...  v    •  •  !<-•.  f.-.  -;  T.    »-.'::  .->*  S.  W.  Rep.  945);  Wichita  Valley  Ry. 
Ca  v.  Peery,  81  T.  597  (30  S.  W.  Rep.  435> 
•Const,  art.  V.  ~  :j;  R  S.  937. 


112  JURISDICTION.  [§§100,101. 

attendance  at  the  commencement  or  any  other  day  of  the  term ; 
but  if  a  sufficient  number  of  judges  shall  not  attend  on  the  first 
day  of  the  term  to  hold  said  court,  or  shall  not  attend  at  any  day 
of  the  term,  any  judge  of  the  court,  or  the  sheriff  attending  the 
same,  may  adjourn  the  court  from  time  to  time,  for  thirty  days,  at 
which  time,  if  a  majority  or  quorum  shall  not  attend,  it  shall  be 
the  duty  of  the  judge  or  sheriff  in  attendance  to  adjourn  the  court 
to  the  next  regular  term  time.1 

g  100.  Sessions  of  courts  of  civil  appeals. 

Each  of  the  courts  of  civil  appeals  must  hold  its  sessions  at  a 
place  in  its  district  to  be  designated  by  the  legislature,  and  at  such 
time  as  may  be  prescribed  by  law.2  The  terms  of  said  courts  com- 
mence on  the  first  Monday  in  October  of  each  year,  and  the  court 
may  continue  in  session  until  the  first  Monday  in  July  of  each  suc- 
ceeding year.3  A  court  of  civil  appeals  may  adjourn  from  day  to 
day  or  for  such  time  as  may  be  deemed  proper  by  the  judges  thereof. 
If  a  sufficient  number  of  the  judges  shall  not  be  present  at  the  first 
or  any  day  of  the  term,  any  judge  of  the  court,  or  the  sheriff  at- 
tending the  same,  may  adjourn  the  court  from  time  to  time,  until 
a  quorum  shall  be  in  attendance,  but  the  court  shall  not  be  finally 
adjourned  for  the  term.4  Under  the  act  of  1893,  the  courts  of  civil 
appeals  are  held  at  Galveston,  Fort  "Worth,  Austin,  San  Antonio, 
and  Dallas.5 

§  101.  Supreme  court  may  make  and  enforce  rules  of  procedure. 

The  supreme  court  has  power  to  make  and  establish  rules  of  pro- 
cedure, not  inconsistent  with  the  laws  of  the  state,  for  the  govern- 
ment of  said  court  and  the  other  courts  of  the  state,  to  expedite 
the  dispatch  of  business  therein.6  The  statute  provides  that  the 
supreme  court  shall  have  power  to  make,  establish  and  enforce  all 
necessary  rules  of  practice  and  procedure,  not  inconsistent  with  the 
laws  of  this  state,  for  the  government  of  said  court,  and  all  other 
courts  of  the  state,  so  as  to  expedite  the  dispatch  of  business  in  said 
courts.7  It  is  also  the  duty  of  the  court  to  make  and  promulgate 
suitable  forms,  rules  and  regulations  for  carrying  into  effect  the 
statutes  relating  to  its  own  jurisdiction  and  practice.8 

All  litigants  must  take  notice  of  the  rules  of  the  court  in  which 

1  R.  S.  938. 

2  Const.,  art.  V,  §  6. 
3R.  S.  991. 

4R.S.  995. 

5  R.  S.  993. 

«  Const.,  art  V,  §  25. 

"  R.  S.  947. 

8  R.  S.  944. 


2.]  sri'KKMK    COURT    AND    COURT8   OF    CIVIL    AIT!  113 

they  :nv  litigating.1  Rules  of  practice  established  l>y  the  supreme 
court  may  be  so  adapted  in  their  exercise  as  to  prevent  any  partic- 
ular oppression;  those  prescribed  by  the  legislature  must  be  ol>- 
according  to  their  meaning,  whatever  may  be  the  consequences  in 
individual  rases.2  The  power  above  conferred  must  have  designed 
more  than  the  making  of  a  few  short  rules,  such  as  had  formerly 
been  made.1  Failure  to  observe  the  rules  prescribed  by  the  su- 
preme court  for  bringing  cases  before  it  is  a  good  ground  for  dis- 
missal, in  the  discretion  of  the  court,  unless  a  sufficient  excuse  is 
shown.4  In  construing  their  own  rules  of  practice,  the  courts  gen- 
erally exclude  Sunday.* 

§  102.  Contempt  ol  court. 

The  supreme  court  has  power  to  punish  any  person  for  a  con- 
tempt of  said  court,  according  to  the  principles  and  usages  of  law 
in  like  cases,  not  to  exceed  sl,oijo  fine  and  imprisonment  not  ex- 
ceeding twenty  days.6  The  same  power  is  conferred  upon  the 
courts  of  civil  appeals,  with  the  exception  that  they  may  fine  or  im- 
prison—  not  both.7 

i  So.  Pac.  Ry.  Co,  v.  Haas,  85  T.  401  (20  S.  W.  Rep,  586). 
»  De  Leon  v.  Owen,  3  T.  153;  Mills  v.  Bagby,  4  T.  320, 
» Texas  Land  Co.  v.  Williams,  48  T.  602. 
«  Shanks  v.  Carroll,  50  T.  17. 
*  Burr  v.  Lewis,  6  T.  76. 
8R.S.948.    See  §§  60,  61,  ante. 
'R.S.999. 
8 


CHAPTEE  Y. 


ORIGINAL,  APPELLATE  AND  SUPERVISORY  JURISDICTION  OF  THE 
DISTRICT  AND  COUNTY  COURTS. 


103.  Original  jurisdiction  of  the  dis- 
trict court. 

104  Original  jurisdiction  of  county 
courts. 

105.  Various  statutory  provisions  as 

to  jurisdiction. 

106.  General  principles  in  respect  to 

the  jurisdiction  of  the  district 
court. 

107.  Amount  in  controversy. 

108.  Amount  in  controversy  in  dis- 

trict court 

109.  Amount  in  controversy  in  the 

enforcement  of  liens. 


§  110.  Amount  in  controversy  in  case 
of  payment,  re  mission  of  a  part, 
or  a  reduction  on  exception. 

111.  Suits  concerning  land. 

112.  Enforcement  of  liens  on  land. 

113.  Trial  of  the  right  of  property. 

114.  Trial  of  right  to  office. 

115.  Removal  from  office. 

116.  Motions  against  officers  of  court. 

117.  Jurisdiction  in  equity. 

118.  Power  to  issue  writs. 

119.  Appellate  and  supervisory  juris- 

diction of  the  district  courts. 

120.  Appellate  and  supervisory  juris- 

diction of  county  courts. 


§  103.  Original  jurisdiction  of  the  district  court. 

The  district  courts  have  original  jurisdiction  in  civil  cases: 

1.  Of  all  suits  in  behalf  of  the  state  to  recover  penalties,  forfeit- 
ures and  escheats. 

2.  Of  all  cases  of  divorce. 

3.  Of  all  suits  to  recover  damages  for  slander  or  defamation  of 
character. 

4.  Of  all  suits  for  the  trial  of  title  to  land,  and  for  the  enforce- 
ment of  liens  thereon. 

5.  Of  all  suits  for  trial  of  right  to  property  levied  upon  by  virtue 
of  any  writ  of  execution,  sequestration  or  attachment,  when  the 
property  levied  on  shall  be  equal  to  or  exceed  in  value  $500. 

6.  Of  all  suits,  complaints  or  pleas  whatever,  without  regard  to 
any  distinction  between  law  and  equity,  when  the  matter  in  con- 
troversy shall  be  valued  at  or  amount  to  $500  exclusive  of  interest. 

7.  Of  contested  elections. 

8.  And  have  general  original  jurisdiction  over  all  causes  of  action 
whatever  for  which  a  remedy  or  jurisdiction  is  not  provided  by  law 
or  the  constitution,  and  such  other  jurisdiction,  original  and  appel- 
late, as  may  be  provided  by  law.1 

Subject  to  the  limitation  stated  in  chapter  3,  title  23,  of  the  Re- 

1  Coast,  art  V,  g  8;  R  S.  1098,  1099. 


4-.]  DISTRICT   AND   COUNTY    COti:T-.  11.1 

:  Statutes,  the  district  courts  are  authorized  to  he-ir  and  <i 
mine  any  cause  which  is  or  may  be  cognizable  by  courts  citi 
law  or  equity,  and  to  grant  any   relief  which  could  be  granted  \iy 

or  either  of  them.1 

The  provision  as  to  contested  elections  in  the  section   of  the 

constitution  above  quoted  was  not  in  the  original  section  of  the 

itution  of  ISTfi,  but  provision  had  been  made  by  statute  con- 

irisdiction  on  the  district  .judge  to  try  cases  of  com. 
•  •lections  of  district  attorneys,  district  judges,  justices  of  the  su- 
preme court,  county  officers,  and  elections  for  other  purposes  than 
the  election  of  county  officers.2  But  before  the  adoption  of  the 
above  amendment,  the  decisions  were  to  the  effect  that  the  district 
court  could  not,  constitutionally,  take  jurisdiction  of  a  case  for  the 
contest  of  an  election;  that  it  had  no  jurisdiction  of  a  proceeding 
which  is  not  a  suit,  complaint  or  plea,  and  that  a  proceeding  to 
contest  an  election  is  not  such  a  proceeding;  that  there  is  a  dili'ei- 
ence  between  the  contest  of  an  election  and  a  suit  for  an  office  — 
the  latter  being  a  suit  within  the  letter  and  meaning  of  the  consti- 
tution; the  former  involving  a  political,  or  rather  extra-judicial, 
question,  to  be  regulated  under  the  constitution  by  the  political  au- 
thority of  the  state.3  And  it  is  held  that  the  provision  in  the 
amendment  is  not  self-executing;  that  it  prescribes  no  rules  by  which 
the  jurisdiction  conferred  may  be  enforced;  that  a  contested  elec- 
tion is  not  a  civil  suit  or  cause  and  therefore  cannot  be  tried  by  the 
proceedings  had  in  such  cases.4 

?'  104.  Original  jurisdiction  of  county  courts. 

County  courts  have  exclusive  jurisdiction  in  all  civil  cases  when 
the  matter  in  controversy  shall  exceed  in  value  s^ou  and  not  exceed 
.  exclusive  of  interest;  and  concurrent  jurisdiction  with  the 
district  court  when  the  matter  in  controversy  shall  exceed  $500  and 
not  exceed  si.oon,  exclusive  of  interest;  but  do  not  have  jur 
tion  of  suits  for  the  recovery  of  land.*  The  legislature  has  power, 
by  local  or  general  law.  to  increase,  diminish  or  change  the  civil  ju- 
risdiction of  county  courts;  and  in  cases  of  any  such  change  of 
jurisdiction  the  legislature  must  also  conform  the  jurisdiction  of 

i  R  S.  1106. 

*Sayles'  Civ.  Stat.,  arts.  1719-28,  1TV,\ 

•  .sun  v.  TV  in  pit-ton,  62  T.  555;  Ex  parte  Whitlow,  59  T.  -)7:5:  Williamson  v. 
Lane,  52  T.  335;  Wright  v.  Fawcet  .'»3;  Rogers  v.  Johns,  42  T.  839;  Ex 

Towles.  48  T.  413;  State  v.  Owens,  63  T.  261. 

11  v.  Wharton,  87  T.  17:3  cX  S.  W.  Rep.  123).    In  Cobb  v.  Cohron.  M  &  \V. 
Rep.  846,  it  is  held  that  tin-  pmviMoust.f  tin-  .-tati.  tin^  parties  anil  pn>- 

B  in  runt,  ;!••  valiil  an>l  i-nVctnal  uinU-r  the  above  aim  nil- 

win- re  full  provision  is  maJ«  for  cunt 

» Const,  ai  R.  S.  1151,  11 5.1    See  §  108,  infra. 


116  jrmsDicTioN.  [§  104:. 

the  other  courts  to  such  change.1     It  is  provided  by  statute  that  the 
county  court  shall  not  have  jurisdiction  — 

1.  Of  any  suit  to  recover  damages  for  slander  or  defamation  of 
character. 

2.  Nor  of  suits  for  the  recovery  of  land. 

3.  Nor  of  suits  for  the  enforcement  of  liens  upon  land. 

4.  Nor  of  suits  in  behalf  of  the  state  for  escheats. 

5.  Nor  of  suits  for  divorce. 

6.  Nor  of  suits  for  the  forfeiture  of  the  charters  of  incorporations 
and  incorporated  companies. 

7.  Nor  of  suits  for  the  trial  of  the  right  to  property  levied  on  by 
virtue  of  any  writ  of  execution,  sequestration  or  attachment,  when 
the  property  levied  on  shall  be  equal  to  or  exceed  in  value  $500.2 

Subject  to  the  limitations  stated,  the  county  courts  are  authorized 
to  hear  and  determine  any  cause  which  is  or  may  be  cognizable 
by  courts,  either  of  law  or  equity,  and  to  grant  any  relief  which 
could  be  granted  by  said  courts  or  either  of  them.3 

Power  is  also  conferred  on  the  county  judge  to  appoint  commis- 
sioners to  assess  damages  in  proceedings  to  condemn  land,  and  to  try 
the  matter  when  either  party  is  dissatisfied  with  the  decision  of  the 
commissioners.4 

The  constitutional  amendment  of  1891  relating  to  the  judiciary 
did  not  restore  to  the  county  courts  the  jurisdiction  that  had  been 
previously  taken  from  them  and  vested  in  the  district  courts  by 
acts  diminishing  the  jurisdiction  of  the  county  courts  of  certain 
counties.  Article  22  of  section  5,  empowering  the  legislature  to  di- 
minish or  change  the  jurisdiction  of  count}7"  courts,  was  not  changed ; 
and  it  is  a  reasonable  presumption  that  it  was  the  intention  to  con- 
tinue it  in  uninterrupted  operation.15 

The  jurisdiction  of  the  county  court  over  the  subject-matter  must 
be  affirmatively  shown  by  the  record ;  it  will  not  be  presumed.6 

The  provision  of  the  constitution  conferring  jurisdiction  on  the 

1  Const.,  art.  V,  §  22.  Numerous  acts  have  been  passed  under  this  provision, 
increasing,  diminishing,  changing  and  restoring  the  jurisdiction  of  county 
courts  in  various  counties,  so  that  it  is  now  necessary  to  consult  the  statutes  to 
ascertain  the  jurisdiction  of  any  county  court,  or  that  of  other  courts  affected 
by  such  changes.  If  an  act  be  regarded  as  an  attempt  to  change  the  jurisdiction 
of  the  county  court,  it  will  be  held  inoperative  if  it  fails  to  conform  the  juris- 
diction of  the  other  courts  to  such  change.  So  held  in  respect  to  article  5295  of 
the  Revised  Statutes,  which  gives  jurisdiction  to  county  courts  in  trials  of  right 
to  property  where  the  amount  in  controversy  is  $500.  Erwin  v.  Blanks,  62  T. 
583.  See  §  113,  infra. 

2R  S.  1157. 

8R.S.  1162. 

*  R  S.  4447,  4448,  4468. 

6  Muench  v.  Oppenheimer,  86  T.  568  (26  S.  W.  Rep.  496), 

6  Bohl  v.  Brown,  2  App.  C.  C.?  §  540. 


'•J.]  MMKKT    AM'    OOUBTI    O  'I'KTS.  117 


county  court  whore  the  amount  in  controversy  I|..,-N  not  »v\ 
si.  01  MI,  i-\r|u>i\e  of  interest,  applies  to  cases  iu  which  inter. 
expressly  given  by  statute,  and  not  to  those  in    which   the   rate  of 
interest  is  merely  taken  as  a  standard  by  which  to  measure  in  part 
damages  to  be  recovered.     So  where  a  plaintiff  claims  si.  .....  > 

as  the  value  of  L'oods  eon  verted,  and  an  additional  sum  as  inr 
on  that  amount  from  the  time  of  the  conversion  as  damages,  the 
county  court  has  no  jurisdiction;  and  the  case  is  one  over  which 
upreme  court  has  jurisdiction  on  error  to  the  court  of  civil 
appeals.1 

Where  a  claim  is  made  for  both  actual  and  exemplary  dam 
and  the  aggregate  amount  is  sufficient  to  confer  jurisdiction,  the 
elimination  of  the  claim  for  exemplary  damages  by  the  death  of 
the  plaintiff  will  not  defeat  the  jurisdiction.3  In  an  action  against 
a  railroad  company  to  recover  a  penalty  of  s.'.ou  for  unjust  discrim- 
ination, it  was  held  that  the  fact  that  three  distinct  acts  of  discrim- 
ination were  alleged  did  not  indicate  a  claim  for  $500  for  each  act, 
thus  placing  the  amount  above  the  jurisdiction  of  the  county  court. 

The  constitution  and  statutes  give  to  justices'  courts  jurisdiction 

when  the  amount  in  controversy  is  §200  or  less,  exclusive  of  inter- 

mit it  is  not  said  that  such  jurisdiction  is  exclusive.     Exclusive 

jurisdiction  is  given  to  the  county  court  when  the  amount  excee<l>. 

.  but  nowhere,  it  seems,  is  it  said  that  it  may  or  may  not  have 

jurisdiction  when  the  amount  in  controversy  is  less  than  $200.* 

i'  105.  Various  statutory  provisions  as  to  jurisdiction. 

Suit  on  an  apprentice  bond  may  be  brought  in  any  court  having 

jurisdiction  of  the  amount  claimed;5  or  suits  against  common  ear- 

for  failure  to  feed  and  water  live-stock;6  also  suits  for  the 

partition  of  personal  property  shall  be  brought  in  any  court  having 

jurisdiction  of  the  value  of  the  property.7 

I'l  «  K.-eedhiLTs  b%  the  United  States  to  acquire  land,  where  the  agent 
and  the  owner  cannot  agree,  must  be  brought  in  the  district  court  ;  ^ 
also  proceeding  |,\-  any  person  to  change  his  name;  '  or  for  the  dis- 
solution of  marriage;10  or  to  remove  the  disabilities  of  a  minor;11  or 
for  partition  of  real  • 

Iser  v.  Bak.-r.  -,".i  s.  \V.  K,r.  :;:::  Dwyer  v.  Bassett,  id.  815. 

-  luvy.-r  v.  1  1.  1  \V.  Rep,  815. 

Id*  v.  Ft.  W.  &  D.  C.  Ry.  Ca,  30  S.  W.  Rep.  255. 
ML,  ;irt.  V,  g  1'J;  K. 
SR,S.44. 

•  I;. 

837. 

»R 

'  U.  s.  :;::. 
.•178. 

I:,  a  :!499. 
3     :i507. 


118  JURISDICTION.  [§  106. 

§  106.  General  principles  in  respect  to  the  jurisdiction  of  the  dis- 
trict court. 

A  narrow  and  literal  construction  of  the  constitution,  in  regard 
to  the  jurisdiction  of  the  district  court,  will  not  be  adopted,  when 
its  result  would  be  to  leave  no  tribunal  competent  to  take  jurisdic- 
tion of  important  cases  arising  under  legislative  enactments.1  The 
legislature  has  no  power  to  add  to  or  withdraw  from  the  jurisdic- 
tion of  district  courts,  except  when  expressly  conferred  by  the  con- 
stitution, as  in  section  22,  article  V,  of  that  instrument.2  If  a  cause 
of  action  exists,  and  jurisdiction  thereof  is  not  conferred  upon  any 
other  court,  it  is  embraced  within  the  jurisdiction  of  the  district 
court.3 

Under  the  clause  conferring  jurisdiction  "of  all  suits,  complaints 
and  pleas  whatever,  without  regard  to  any  distinction  between  law 
and  equity,  when  the  matter  in  controversy  shall  be  valued  at," 
etc.,  there  can  be  no  jurisdiction  until  there  is  a  suit,  complaint  or 
plea,  and  a  matter  in  controversy.  The  phrase,  "matter  in  contro- 
versy," implies  that  the  pleading  which  invokes  jurisdiction  must 
disclose  an  adversary  and  assert  a  right  against  him.  The  essential 
functions  of  district  courts  in  this  state  have  always  been  judicial, 
not  administrative;  they  adjudicate  differences  between  litigants; 
they  do  not  register  and  administer  agreements  between  individ- 
uals. A  petition  by  a  number  of  part  owners- of  land  addressed  to 
the  district  court,  and  disclosing  an  agreement  as  to  the  rights  of 
parties  in  the  land,  and  asking  an  order  of  sale  thereof,  does  not 
confer  jurisdiction :  it  is  not  a  suit ;  there  is  no  controversy.  Nor 
does  the  fact  that  one  of  the  parties  is  a  minor  alter  the  rule.4 

In  its  own  peculiar  sphere  the  district  court-is  independent  and 
supreme  in  its  power,  and  the  appellate  court  has  no  authority  to 
inquire  into  or  revise  its  judgments  during  the  period  of  time  when, 
by  its  very  organization  and  constitution,  it  still  has  power  to  alter 
or  change  such  judgments.  The  district  court  has  during  the  term 
complete  and  perfect  control  overall  its  orders  and  judgments,  and 
the  appellate  power  cannot  be  exercised  as  to  them  until  the  dis- 
trict court  finally  adjourns.5  After  the  close  of  the  term  the  court 
has  no  further  control  over  cases  in  which  final  judgments  have 

1  State  v.  De  Gress,  53  T.  387. 

2  Ex  parte  Whitlow,  59  T.  273. 

3  Const.,  art.  V,  §  8:  Gamel  v.  Smith,  3  Civ.  App.  22  (21  S.  W.  Rep.  628).     In  all 
cases  of  doubt  as  to  what  the  law  controlling  the  effect  of  a  trust  deed  is,  and 
as  to  the  conduct  of  the  trustee  under  such  deed,  the  trustee  is  entitled  to  in- 
struction and  direction  from  the  court.    In  such  case  the  trustee,  by  bill  setting 
f  >rth  the  facts  and  joining  the  proper  parties,  may  ask  the  court  for  instruc- 
tions touching  his  rights  and  duties  under  the  trust,  and  the  district  court  lias 
jurisdiction. 

4  Blagge  v.  Moore,  6  Civ.  App.  359  (23  S.  W.  Rep.  466). 

SGarza  v.  Baker,  58  T.  483;  Hamilton  v.  Pleasants,  31  T.  638.    See  §695. 


'7.]  DISTUICT    AND    COUNTY    C  -I  119 

•  nt-Mvd,  without  some  action  on  the  part  of  the  parties  in  the 
nature  of  an  original  proceeding;1   it  may,  on   motion  and  n< 
amend  the  judgment.-     The  district  court  in  all  cases  within  the 

of  its  jurisdiction  lias  authority  to  grant  any  measure  of  re- 
hether  in  law  or  equity,  that  could  at  common  law  l>e  granted 
either  by  a  court  of  law  or  equity.*  The  constitutional  amend- 
ments of  l^'.'l  relating  to  the  judiciary  did  not  affect  jurisdict ion 
already  vested  in  the  district  courts  by  acts  previously  pa 
diminishing  the  jurisdiction  of  county  courts.4 

5  1O7.  Amount  in  controversy. 

Jurisdiction,  so  far  as  matter  or  amount  in  value  is  concerned. 
must  be  determined  by  the  petition;  and  the  question  is  concluded 
by  its  averments  in  so  far  as  they  state  facts  in  relation  to  the  thing 
in  controversy,  unless  it  otherwise  appears  that  an  attempt  has  been 

•  to  confer  jurisdiction  by  averments  improperly.     In  actions 
sounding  in  damages,  the  amount  of  damages  claimed,  and  not  the 
amount  of  the  verdict,  determines  jurisdiction.     In  actions  ex  con- 

'/  the  amount  claimed  determines  jurisdiction,  if  it  is  not  made 
to  appear  that  a  fraud  upon  the  jurisdiction  has  been  attempted  by 
improper  averments  in  the  petition.  In  a  case  admitting  of  rea- 
sonable doubt  as  to  whether  the  amount  in  controversy  is  within 
the  jurisdiction,  and  where  the  plaintiff  might  have  had  reasonable 
grounds  to  believe  that  lie  could  recover  a  sum  within  the  jurisdic- 
tion of  the  court,  the  case  will  not  be  dismissed,  for  all  intend- 
ments  in  a  doubtful  case  are  in  favor  of  the  jurisdiction.5  The 
terms  "matter  in  controversy"  and  "amount in  controversy"  have 
the  same  meaning.9 

If  items  are  fraudulently  included  in  a  petition,  for  the  purpose 
\in.i:  the  court  a  jurisdiction  to  which  it  is  not  entitled,  this 
should  be  pleaded  and  made  an  issue  in  the  case.7 

•dale  v.  Green,  36  T.  193;  Bass  v.  Hays,  38  T.  128;  Hill  v.  Faison,  27  T.  428. 
2 Cowan  v.  Ross,  28  T.  227;  Burnett  v.  State,  U  T.  450;  Whittaker  v.  Gee,  63  T. 

»  Voi«tlan,lrr  \.  Hrotze,  59  T.  286;  Tucker  v.  Anderson,  2-'>  T.  Sup.  158;  T 
Kol.inson,  11  T.  776;  Sbulte  v.  Hoffman,  18  T.  678;  Simpson  v.  Hu>ton.  14  T.  47H. 
<GoKsett  v.  Munro.  •,'«•  S.  \V.  Hep.  TNI.     Win-re  tin-  .li-nict  court  liiul  juristic 

•  t  <i  suit  at  the  time  of  its  institution,  but  afterwards,  by  a  new  <-t>n>titu- 
rioii.   rxclu-iM-  jurisdiction  was  conferred  upon   th>-  county  court   "luring  the 

in -v  of  tin-  Miit.  it   >houl<l  not  have  dismi-s.-d.  hut  should  have  continue-! 
until   the   legislature  niaili-  necessary)'!  t'»r  a   ti.tn>t.r.     M.-i'rt-arv   v. 

.  Lodge,  2  U.  C 

('.:{  T.  274:  Ti.lhall  v.  Ki.-bolf,  66  T.  58  ilT  S.  \V.  Rep.  363); 
in  v.  U,, 11,, way.  f.'.i  T.   u;s  ,.;  S.  W.  K',-p.  7^:,,-.  .},,w^    v.  J<me«,  1    \p| 
:   Cook   v.  H,pr>tiiiaii.  'J    A  |,|>.  ('.('..?  TTu.     .In  l-mcnt    may1  red  for 

less  (ban  tht-  juris-lictioiial  amount.     Sa!m>-r  \.  Machon,  1  Apj>.  i  J;  Tex. 

"..  ::  A  pp.  « 

nith  v.  (iil,-.  C,:,  T.  :!41. 
•Tidball   v.  KichotT,  GO  T.  5B  (17  8.  W.  Rep.  263):  I.  \-  C.  N.  l;y.  Co.  v. 


120  JURISDICTION.  [§  107. 

As  a  general  rule,  in  actions  ex  contractu  the  question  of  jurisdic- 
tion is  determined  by  the  amount  of  damages  claimed  in  the  peti- 
tion, and  not  by  the  amount  recovered ; l  also  in  actions  of  tort.2 
In  an  action  for  the  conversion  of  property  the  amount  in  contro- 
versy, and  not  the  amount  found  in  the  verdict  of  the  jury,  deter- 
mines the  jurisdiction  of  the  court.  The  amount  claimed  in  the 
petition  will  be  deemed  the  amount  in  controversy,  and  will  deter- 
mine the  question  of  jurisdiction,  unless  it  appear  that  the  allega- 
tions were  falsely  and  fraudulently  made  to  give  jurisdiction  where 
it  did  not  properly  belong.  The  value  of  the  property  and  the 
damages  from  the  seizure  constitute  the  amount  in  controversy.3 

The  question  of  jurisdiction  of  a  plea  in  reconvention  is  deter- 
mined by  reference  to  the  amount  claimed  in  such  plea.  And  it  is 
held  that  the  amount  claimed  by  such  plea  determines  the  right  to 
appeal  from  the  judgment  of  the  county  court  rendered  in  a  case 
appealed  to  that  court  from  a  justice's  court.4 

In  a  suit  to  enjoin  a  judgment  where  there  has  been  a  levy  on 
property,  the  amount  of  the  judgment  and  not  the  value  of  the 
property  levied  upon  is  the  amount  in  controversy.5  But  where 
the  suit  is  brought  to  enjoin  a  sale  of  the  property,  the  value  of  the 
property  determines  the  question  of  jurisdiction.6  Where  the  sub- 
ject-matter of  a  controversy  is  the  priority  of  liens  claimed  on  cer- 

son,  61  T.  550;  Dvvyer  v.  Bassett,  63  T.  274;  Roper  v.  Brady,  80  T.  588  (16  S.  W. 
Rep.  434);  Bates  v.  Van  Pelt,  1  Civ.  App.  185  (20  S.  W.  Rep.  949);  Seville  v.  Rush, 
25  S.  W.  Rep.  1022. 

1  Lay  v.  Blankenship,  2  U.  C.  272. 

2  Sozaya  v.  Patterson,  23  S.  W.  Rep.  745. 

»  Baker  v.  Guinn,  4  Civ.  App.  539  (23  S.  W.  Rep.  604).  Where  the  demand  sued 
for  amounted  to  §466,  and  §200  consequent,  additional  and  necessary  damages 
was  also  claimed,  the  subject  of  litigation  was  within  the  jurisdiction  of  the 
district  court.  Dahoney  v.  Allison,  1  U.  C.  112.  Where  the  petition  claims  a 
balance  of  account  in  the  sum  of  $929.55,  and  an  itemized  account  annexed 
shows  that  sum  to  be  due,  an  additional  allegation,  "  to  his  damage  §500,"  does 
not  limit  the  amount  in  controversy  to  §500.  The  allegation  may  be  disre- 
garded. Buer  v.  Prescott,  14  S.  W.  Rep.  138.  In  a  suit  on  a  note  the  stipulated 
attorney's  fee  is  a  part  of  the  matter  in  controversy  and  not  costs  of  suit. 
Blankenship  v.  Wartelsky,  6  S.  W.  Rep.  140;  Altgelt  v.  Harris,  11  S.  W.  Rep. 
857;  Waters  v.  Walker,  4  App.  C.,  C.,  §  268;  Martin  Brown  Co.  v.  Perrill,  77  T.  199 
(13  S.  W.  Rep.  975);  King  v.  Robinson,  2  App.  C.  C.,  §  556;  Moore  v.  Fay,  4  App. 
C.  C.,  §  199. 

< Newman  v.  McCallum,  1  App.  C.  C.,  §  273;  Taul  v.  Shanklin,  1  App.  C.  C., 
§  1135:  Tucker  v.  Napier,  1  App.  C.  C.,  §  671;  L  &  G.  N.  Ry.  Co.  v.  Grant,  1  App. 
C.  C.,  g  784;  Seitz  v.  McKenzie,  4  Civ.  App.  81  (22  S.  W.  Rep.  104).  Where  a  suit 
is  instituted  in  the  district  court  to  recover  an  amount  below  the  jurisdiction 
of  the  court,  and  also  to  enforce  a  lien  on  land,  and  the  jurisdiction  fails,  by 
reason  of  the  lien  proving  invalid,  a  plea  in  reconvention  for  an  amount  within 
the  jurisdiction  of  the  court  is  sufficient  to  authorize  an  adjudication.  Phelps 
&  Bigelow  Windmill  Co.  v.  Parker,  30  S.  W.  Rep.  365. 

5  Wheeler  v.  Whitener,  2  App.  C.  C.,  §  15. 

e  Brown  v.  Young,  1  App.  C.  C.,  §  1240. 


§  107.]  Ul 

tain  propfrrv,  the  value  of  the  property  is  the  amount  in  eontro- 
. .'  In  a  suit  to  srt  aside  and  cancel  a  mortiraire  tin-  value  of 
the  property  niortiM-vd  determines  the  jurisdiction.'-'  Also  where 
tlie  object  of  the  suit  is  to  enjoin  a  sale  of  exempt  property.1  In 
suits  by  attachment  the  amount  of  the  debt  and  not  the  value  of 
the  property  attached  is  the  matter  in  controversy.4 

Where  a  judgment  of  a  county  court  is  for  more  thai 
it  will  he  presumed,  in  favor  of  jurisdiction,  that  the  excess  over 
is  interest  on  the  amount  sued  for.  The  county  court  is 
a  court  of  general  jurisdiction  within  the  limits  prescribed  by  la\\O 
Where  the  object  of  the  suit  is  to  recover  the  value  of  property 
•d  upon,  and  which  is  claimed  to  be  necessary  to  the  beneficial 
enjoyment  of  plaintiff's  homestead,  and  damages  are  claimed,  the. 
amount  claimed  in  the  petition  and  not  the  value  of  the  property 
is  the  amount  in  controversy.6  Several  tax-payers  may  join  in  a 
suit  to  restrain  the  collection  of  taxes  levied  on  their  property,  and 
the  aggregate  amount  of  the  taxes  sought  to  be  enjoined  determines 
the  question  of  jurisdiction.7 

Where  the  allegations  in  the  petition  show  that  the  amount  in 

controversy  is  in  excess  of  the  jurisdiction  of  a  county  court,  the 

>hould  be  dismissed,  though  the  prayer  is  for  a  sum  over  which 

the  court  has  jurisdiction.8    Allegations  as  to  damages  which  are 

1  Fisher  v.  Bogarth,  2  App.  C.  C.,  g  121. 

»Bohl  v.  Brown,  2  App.  C.  C.,  §  54  J. 

»  Kelley  v.  Stein,  3  App.  C.  C.,  §  451. 

4  Barnett  v"  Rayburn,  4  App.  C.  C.,  §  84. 

»  Richards  v.  belcher,  6  Civ.  App.  284  (25  S.  W.  Rep.  740). 

6  Ross  v.  MeGuffiu,  2  App.  C.  C.,  g  »>. 

'Carlile  v.  Eldridge,  1  App.  C.  C..  §  986. 

8  Rose  v.  Riddle,  3  App.  C.  C.,  g  298.    Where  the  amount  of  a  note  sued  on  is 

within  tlf  jurisdiction  of  the  county  court,  an  allegation  of  damage  for  failure 

t< '  p.iy  thi-  note  should  be  rejected  as  surplusage,  and  the  case  should  be  retained. 

Opp  -nheimer  v.  Fritter,  3  App.  C.  C.,  §  2(>:j.     Tin-  county  court  has  juris  diction 

to  set  aside  an  allowance  of  a  claim  for  &J1H  a^ainM  an  estate.    Robertson  v. 

M< •  \  !•    .  i  App.  C.  C.,  §  546.    The  petition  showed  that  B.  and  P.  had  a  oat 

actimi  :i_-iii!-t  T.  in  a  mount  sufficient  to  give  jurisdiction  to  the  county  court. 

1'.  had  sold  his  half  of  the  claim  to  B.,  and  guarantied  payment  <-t  -,.V     In  suit 

is  a  proper  party.    The  statute  allowing  suit  in  the  county  of  the 

nee  of  one  of  several  defendants  makes  no  distinction  as  to  the  dun 

of  his  liability,  whether  primary  or  as  security.     The  fact  that  I'.'s  liability  was 

only  $12.*>.  and  not  in  itsdf  within  the  jurisdiction  of  the  county  court.  wt.uld 

privi-  the  county  court  of  jurisdiction  of  bin  liability,  the  amount  of  the 

entire  liability  being  sufficient  to  give  the  court   juris  fiction.     Suit  could  IK- 

brought  in  t  h-- county  of  P. 's  residence.     The  court  having  jurisdiction  of  the 

dairn  had  it  as  to  tip-   part   guarantied  by  him.     Tl  .iii-l  .u'»iar- 

unty  iK-ing  gi-nuinc,  and  for  a  valuable,  consideration,  the  effect  of  ^ivin^  juris. 

diction  in  1 1,.-  » ,nrt  of  P.'s  n-nidi-i would  not  be  aflfect-d.  altln-u-h  ;h  •  obj,-ct 

in  part  %\;iv  to  confer  sudi  jurisdiction.     Tin-  transaction  \v;is  not  a  fraud  upon 
the  jurisdiction.    Turner  v,  brooks,  2  Civ.  App.  401  i','l  S.  W.  Rep,  404). 


122  JURISDICTION.  [§  108. 

not  the  obvious  consequences  of  the  acts  complained  of  will  not  be 
considered.1 

g  108.  Amount  in  controversy  in  district  court. 

Section  8,  article  V,  of  the  constitution  confers  on  the  district 
court  jurisdiction  of  all  suits  when  the  matter  in  controversy  shall 
be  valued  at  or  amount  to  $500,  exclusive  of  interest.  Construing 
this  section  in  connection  with  section  16  of  the  same  article,  which 
provides  that  the  county  courts  shall  have  exclusive  original  juris- 
diction in  all  civil  cases  when  the  matter  in  controversy  shall 
exceed  §200  and  not  exceed  $500,  exclusive  of  interest,  and  concur- 
rent jurisdiction  with  the  district  courts  when  the  matter  in  con- 
troversy shall  exceed  $500  and  not  exceed  $1,000,  exclusive  of 
interest,  it  is  held:  (1)  There  is  an  irreconcilable  conflict  between 
the  two  provisions  —  since  the  district  court  cannot  have  jurisdic- 
tion when  the  amount  involved  is  precisely  $500,  and  the  county 
court  exclusive  jurisdiction  for  the  same  amount.  (2)  But  the  pro- 
vision in  section  16  is  more  comprehensive  as  well  as  more  specific 
than  that  in  section  8,  and,  under  a  canon  of  construction,  should 
be  regarded  as  the  more  accurate  expression  of  the  law-makers'  in- 
tent. (3)  In  construing  repugnant  provisions  of  a  constitution,  it 
would  seem  that  the  last  provision  should  prevail;  but  as  applied  to 
the  organic  law,  this  rule  should  be  acted  on  only  as  a  last  resort.2 

The  district  court  has  no  .jurisdiction  of  a  suit  to  recover  money 
of  the  exact  amount  of  $500.*  When  a  plaintiff  in  his  petition  al- 
leges the  amount  in  controversy  to  be  a  sum  which  gives  jurisdic- 
tion to  the  district  court,  the  jurisdiction  can  only  be  questioned  by 
plea  alleging  that  the  amount  in  controversy  is  i'alsely  stated  for 
the  purpose  of  conferring  power  upon  the  court  to  hear  and  de- 
termine the  case.  It  has  been  often  decided  in  cases  in  which  the 
collection  of  money  has  been  enjoined  that  the  defendant  upon 
proper  pleading  and  proof  may  have  a  judgment  for  his  debt,  al- 
though the  amount  be  not  sufficient  to  give  jurisdiction  to  the  court 
in  the  original  action.  Where  a  plaintiff  sues  in  the  district  court 
on  a  debt  less  in  amount  than  $500  and  to  enforce  a  lien  on  land,  if 
it  be  found  that  no  lien  exists,  the  suit  will  be  dismissed  for  want 
of  jurisdiction.4 

iMcKnight  v.  Carmichael,  7  Civ.  A  pp.  270  (27  S.  W.  Rep.  150). 

2  G.,  C.  &  S.  F.  Ry.  Co.  v.  Rambolt,  67  T.  654  (4  S.  W.  Rep.  356);  Erwin  v.  Blanks, 
fiO  T.  583;  Cleveland  v.  Tufts,  69  T.  580  (7  S.  W.  Rep.  72);  Carney  v.  Marsalis.  77 
T.  62  (13  S.  W.  Rep.  636);  Wetzel  v.  Simon,  87  T.  403  (28  S.  W.  Rep.  942);  Better- 
ton  v.  Echols.  85  T.  212  (20  S.  W.  Rep.  63).    See  St.  Louis  Type  Foundry  v.  Taylor, 
6  Civ.  App.  732  (26  S.  W.  Rep.  226). 

3  G.,  C.  &  S.  F.  Ry.  Co.  v.  Rambolt,  67  T.  654  (4  S.  W.  Rep.  356);  Garrison  v.  Express 
Co.,  69  T.  345  (6  S.  W.  Rep.  842);  Carroll  v.  Silk,  70  T.  23  (11  S.  W.  Rep.  116);  Wood 
County  v.  Cate,  75  T.  219  (12  S.  W.  Rep.  536).     Nor  where  the  amount  is  Sod:), 
with  interest.     Henderson  v.  Anglo-American  L.  &  C.  Ass'n,  7  S.  W.  Rep.  837. 

4  Carter  v.  Hubbard,  79  T.  356  (15  S.  W.  Rep.  392).    Carter,  a  creditor  whose 


'S.]  DISTRICT   AND   C^l 

The  jurisdiction  of  suits  in  behalf  (»f  tlio  state  to  recover  pena  1- 

t'orfeitures  and  escheats  is  not  dependent  upon  the  amount  in 

COM  t  i-o  \vi-sy;  as,  for  example,  a  suit  on  a  liquor  -drain-' s  bond.    The 

:hat  the  jvnalty  is  recovered  liy  the  state  in  hchalf  of  a  county 

not  all'ect  the  suit  as  in  behalf  of  the  state.     The  rule  holds  in 

suits  on  peace  bonds.1 

The  district  court  has  no  jurisdiction  to  decree  the  cancellation 
of  a  deed  for  the  sale  of  land  on  the  ground  of  fraud  in  the  vendor, 
when  the  purchase-money,  exclusive  of  interest,  the  recovery  back 
of  which  is  sought,  amounts  to  less  than  £.">oo,  there  being  no  con- 
troversy involving  the  title,  a  reconveyance  of  which  to  the  vendor 
was  tendered  by  the  plaint  it!.2  In  actions  for  damages,  where  the 
jury  would  l>e  warranted  in  giving  exemplary  damages,  the  ques- 
tion of  jurisdiction  is  determined  solely  by  the  amount  claimed  in 
the  petition.3 

claim  was  less  than  $500,  sued  Hubbard,  executor  of  Davis,  and  Cox  to  annul  a 
nan  tin  t'-tator  to  Cox  conveying  a  tract  of  land,  etc.,  and  to  establish 
his  claim  against  the  estate.  Carter  failing  in  the  other  parts  of  his  action,  his. 
iiu .11. •%-  claim  could  not  be  considered  in  the  district  court  for  want  of  jurisdic- 
tion over  tin-  amount 

rinaii.  81  T.  569  (16  S.  W.  Rep.  1067);  State  v.  Stoutsenberj; 

S.  \V.  i  l  App.  G  :  State  v.  Laing.  16  S.  W.  Rep.  100*:  State  v. 

San  Miguel.  4  t  'iv.  A  pp.  is-j  (•&  8.  W.  Rep.  389).     In  Grady  v.  Regan.  ','  A  pp.  C.  C., 
.t  is  In-Ill  that  a  suit  brought  by  the  county  judge  on  a  liquor-deal  r's 
bond  is  not  a  suit  in  behalf  of  the  state  to  recover  a  penalty  or  forfeiture,  and 
that  the  amount  claimed  determined  the  jurisdiction. 

-Mixan  v.  Qrove,  59  T.  57:5. 

•Graham  v.  Roder,  5  T.  141.  Contract  was  made  to  deliver  six  hundred  luv.  I 
of  cattle  l>y  a  specified  time.  Delivery  was  made  and  accepted  of  four  hundred 
and  seventy-three  Uead  after  the  time,  and  one  hundred  and  twenty-seven  head 
were  not  delivered.  Plaintiff  sued,  alleging  his  damages  to  be  $871  for  failure 
to  deliver  thf  OIK-  hundred  and  twenty-seven  head, and  also  $1,000  for  failure  to 
deliver  on  time.  It  \\as  claimed  that  as  there  was  a  delivery  and  acceptance  of 
a  part  of  th  •  <  attle,  the  petition  showed  that  the  $371  claimed  for  non-delivery 
<»f  the  remain •!•  r  was  all  plaintiff  was  entitled  to,  and  that  the  district  court 
had  not  jurisdiction.  //<•/(/,  that  the  sl.ouo  stated  as  damages  should  also  be 
considered,  and  that  the  court  had  jurisdiction.  Seay  v.  Diller,  16  S.  W.  Rep. 
«i|'j.  Action  for  breach  of  contract,  claiming  $480  damages.  There  being  noth- 
ing in  the  case  entitling  plaintiff  to  exemplary  damages,  the  district  court  had 
not  jurisdiction.  Peterson  v.  Thomas.  -J  \  S.  YV.  Kep.  1 1;.'  I.  Where  suit  wa- 
nt in  the  district  court  upon  a  contract  upon  which  (aside  from  n  claim 
for  damages  on  account  of  its  alleged  breach)  there  were  due  less  than  *5<K),  ac- 
cording to  the  averments  of  the  petition,  but,  in  addition  thereto,  $8,00" 
claimed  as  damages  resulting  from  a  breach  of  the  contract,  it  was  held  that  a 
plea  to  the  jurisdiction  on  account  of  the  amount  in  controversy  was  proj>erly 
overruled.  1'arrar  v.  Beeman.  <>:J  T.  175. 

The  record  in  a  suit  in  debt  on  a  promissory  note  disclosed  the  beginning  of 
the  action  in  the  county  court,  and   its  termination   l>y  a  judgment    in   tl, 

•  ourt.  l>ut    revealed  no  cause   for  the  :  f  jurisdiction.     Tin-  del.t 

claimed  to  be  due  was  on  a  promissory  note  tor  £5vN.'.i5.  less  credits  indorsed. 
If  the  suit  \\as  properly  coL-ni/jilile  in  the  district  court,  it  was  only  in  the  ex- 
ercise of  some  sj>ecial  jurisdiction,  in  favor  ot  which  no  presumption  could  be 
indulged.  Bruhn  v.  National  Bank,  ~>l  T.  I'.v. 


124:  JURISDICTION.  [§  109. 

Where  the  district  court  has  jurisdiction  to  render  judgment  in 
a  suit,  the  amount  involved  in  a  subsequent  and  incidental  proceed- 
ing, to  correct  an  irregularity,  abuse,  or  illegality  of  the  final  process 
issued  upon  the  judgment,  is  immaterial.1  The  district  court  from 
which  an  execution  issues  has  jurisdiction  of  a  motion  against  a  bid- 
der to  recover  the  percentage  on  the  value  of  property  bid  off  by 
him  at  the  execution  sale,  without  reference  to  the  amount  to  be 
recovered.3 

The  district  court  has  jurisdiction  if  the  aggregate  amount  of  the 
claims  sued  on  is  within  its  jurisdiction,  though  the  amount  of  one 
of  each  of  said  claims  is  less  than  the  jurisdictional  amount.3 

§  100.  Amount  in  controversy  in  the  enforcement  of  liens. 

In  a  suit  to  enforce  a  lien  on  personal  property  the  value  of  the 
property  determines  the  jurisdiction  of  the  court.4  Where  an  action 
is  brought  in  the  district  court  to  enforce  a  lien  on  land,  and  the 
claim  for  a  lien  fails,  if  the  amount  in  controvery  is  less  than  that 
required  to  give  the  court  jurisdiction,  the  case  should  be  dismissed.5 
In  actions  to  enforce  liens  by  laborers  on  railroads,  the  amount 
claimed  and  not  the  value  of  the  property  determines  the  jurisdic- 
tion.6 But  it  has  been  held  that  the  county  court  has  no  jurisdic- 
tion where  it  is  sought  to  enforce  a  lien  on  the  grade  and  road-bed 
of  a  railroad ; 7  but  the  action  will  lie  when  the  lien  sought  is  only 
against  the  equipments.8 

1  Walker  v.  McMaster,  48  T.  213. 

2Lockridge  v.  Baldwin,  20  T.  303;  Ende  v.  Spencer,  38  T.  114. 

3  Mays  v.  Lewis,  4  T.  38;  Lott  v.  Adams,  4  T,  426;  Ferguson  v.  Culton,  8  T.  283. 
Where  defendant  in  a  suit  on  three  notes  in  the  district  court  of  A.  county  sets 
up  his  right  to  be  sued  in  B,  county  as  to  one  of  the  notes,  the  amount  of  that 
note  cannot  be  added  to  the  others  to  raise  the  amount  sued  on  in  A.  county  to 
the  jurisdictional  amount,  Middlebrook  v.  David  Bradley  Mfg.  Co.,  26  S.  W. 
Rep.  113. 

Where  the  amount  in  controversy  exceeds  $500,  the  district  court  has  juris- 
diction to  compel  a  settlement  between  the  community  survivor  and  those  en- 
titled as  distributees  to  a  partition  of  the  estate.  Huppman  v,  Schmidt,  65  T. 
583.  A  distress  warrant  issued  by  a  justice  of  the  peace  on  a  claim  for  rent  for 
§3,262,  of  which  §116.50  was  then  due,  and  it  was  claimed  was  to  become  due. 
Levied  and  returned  into  district  court,  and  writs  of  injunction  and  sequestra- 
tion issued  against  attaching  creditors  of  the  lessee,  General  demurrer  and 
special  answer,  also  motion  to  dissolve  the  injunction  because  of  insufficiency 
in  the  petition  and  want  of  jurisdiction.  The  court  did  not  err  in  quashing  the 
writ  of  sequestration  and  in  dissolving  the  writ  of  injunction,  and,  as  the  court 
had  no  jurisdiction  of  appellant's  claim,  it  correctly  sustained  the  demurrer  and 
dismissed  the  petition.  Green  v.  Bear,  3.  U.  C.  372, 

<Cotulla  v.  Goggan,  77  T,  32  (13  S.  W.  Rep.  742);  Smith  v.  Giles,  65  T.  341: 
Lane  v.  Howard,  23  T,  7;  Marshall  v,  Taylor,  7  T,  235;  Munroe  v.  Schwartz,  4 
App.  C.  C.,  §  104;  Close  v.  Hannig,  id,,  §  331. 

»Snyder  v.  Wiley,  59  T.  448;  Cameron  v,  Marshall,  65  T.  7. 

e  Tex.  &  St.  L,  Ry.  Co,  v.  Allen,  1  App.  C.  C.,  §  568. 

1  T.  &  P.  Ry.  Co,  v.  White,  1  App.  C.  C.,  §  163, 

«St,  L.,  A,  &  T.  Ry.  Co,  v,  Sandal,  3  App,  C,  C,,  §  379. 


!O    11".    111.]  DISTRICT   ANT)   COUNTY   COUETS. 

110.  Amount  in  controversy  In  case  of  payment,  remission  oi  a 
part,  or  a  reduction  on  exception. 

A  plaintiff  will  not  be  permitted  to  abandon  a  part  of  his  demand 
in  order  to  bring  the  case  within  the  jurisdiction  of  the  court 

:••;  the  amount  of  an  attorney's  fee  stated  in  the  petition  was  in 

98  of  the  jurisdiction  of  the  county  court,  it  was  held  error  to 

permit  plaintiff,  on   plea  to  the  jurisdiction,  to  remit  a  part  of  the 

Whether  he  might  have  abandoned  the  whole  of  the  fee 

claimed  is  not  decided,  but  being  a  distinct  and  severable  demand, 

irht  that  he  might  have  done  so.1  A  demurrer  having 
sustained  to  a  part  of  the  claim  sued  for,  and  reducing  the  amount 
in  controversy  below  $500,  the  plaintiff  by  amendment  set  up  addi- 
tional items  of  charges,  being  new  causes  of  action,  and  it  was  held 
error  to  dismiss  the  suit  after  the  amendment  for  want  of  jurisdic- 
tion. Such  filing  of  a  new  cause  or  causes  of  action  might  entitle 
the  defendant  to  a  continuance,  or  subject  the  plaintiff  to  payment 
of  the  accrued  costs,  yet  in  this  case  it  brought  the  suit  within  the 
jurisdiction  of  the  court.2 

Where  several  claims  are  sued  on,  and  the  entire  payment  of  one 
or  more  of  them  before  suit  was  brought  is  proved,  leaving  the  suit 
to  stand  upon  a  claim  not  originally  within  the  jurisdiction  of  the 
court,  the  suit  must  be  dismissed.3  So,  also,  where  a  part  of  the 
demand  is  barred.4 


Land  titles. 

The  district  court  lias  exclusive  original  jurisdiction  of  all  suits  in 
which  the  title  to  land  is  involved.4  Jurisdiction  is  vested  in  the 
district  court  of  all  suits  for  the  "  trial  of  title  to  land,"  and  denied 

»  Burke  v.  Adoue,  3  Civ.  App.  494  (22  8.  W.  Rep.  824;  23  S.  W.  Rep.  91).  The 
above  ruling  is  made  in  view  of  the  cases  previously  decided  in  this  state.  In 
Mabry  v.  Little,  19  T.  839,  it  is  said  to  be  at  least  questionable  whether  a  part  of 
the  claim  could  be  abandoned  before  suit  The  question  was  referred  to  in 
Fuller  v.  Sparks,  39  T.  138,  and  the  right  was  there  admitted.  In  Odle  v.  Frost, 
59  T.  684,  the  judgment  was  attacked  collaterally,  and  it  was  simply  held  that 
the  jurisdiction  of  the  court  could  hot  be  thus  questioned.  The  following  au- 
thorities are  cited  by  the  court  as  recognizing  the  right:  Wright  v.  Smith.  76 
111  216;  Raymond  v.  Strobel,  24  111.  113;  Hemp  v.  Schneider,  17  Mo.  258;  Denny 
v.  Eikelkamp,  80  Mo.  140:  Hapgood  v.  Doherty,  8  Gray,  378;  Wilson  v.  Insurance 
Co.,  37  N.  W.  Rep.  162.  Contra:  Bent  v.  Graus,  15  Am.  Dec.  638;  St.  Armand  v. 
Gerry,  1  Nott  &  McC,,  a  C.  Rep.  192;  Brown  v.  Gerry,  2  id.  487;  Peter  v.  Schlosse, 
81  Pa,  St  406;  Cox  v.  Stanton,  58  Ga.  406;  James  v.  Stokes,  77  Va,  225.  In  Kel- 
Huffman,  26  a  W.  Rep.  863,  it  is  held  that  where  by  exception  sustained 
to  a  part  of  an  account  sued  on  it  is  reduced  to  an  amount  below  the  jurisdic- 
tion of  the  court,  the  entire  suit  should  be  dismissed.  To  the  same  effect,  Had- 
dock v.  Taylor,  74  T.  216  (11  S.  W.  Rep.  1093). 

1  Wood  County  v.  Cate,  75  T.  215  (12  S.  W.  Rep.  535), 

•Bonner  v.  Watson,  6  T.  172;  Watts  v.  Harding,  5  T.  386;  Cochran  v.  Kellum, 
4  T.  120:  Su  -in^lry  v.  Dickson,  2  T.  192. 

«  Lowe  v.  Dowbarn,  26  T.  507. 

•Const,  art  V,  gg  8,  16;  R,  S.  1098,  1157. 


126  JURISDICTION.  [§  111. 

to  county  courts  in  suits  "  for  the  recovery  of  land."  The  terms 
quoted  are  held  to  mean  the  same  thing,  and  the  proper  test  in  all 
cases  is  whether  the  ascertainment  of  the  rights  asserted  involves 
a  judicial  determination  of,  and  judgment  of  the  court  upon,  the 
title  and  right  to  land.  Neither  the  form  of  the  proceeding,  nor 
the  nature,  degree  or  value  of  the  estate,  can  affect  the  question.1 
The  folknving  propositions  are  held  to  be  correct:  1.  When  the 
original  suit,  as  brought,  shows  an  action  that  necessarily  involves 
the  question  of  title  to  real  estate,  the  county  court  has  no  jurisdic- 
tion. 2.  When  the  issues  raised  are  not  dependent  upon  the  ques- 
tion of  title,  but  on  other  rights,  such  as  the  character  of  possession 
of  real  property,  the  county  court  has  jurisdiction.  3.  When  the 
contest  is  over  other  matters  incidentally  dependent  upon  the  ques- 
tion of  title,  the  county  court  has  jurisdiction, —  provided,  however, 
the  subject-matter  or  amount  is  otherwise  within  the  jurisdiction  of 
that  court.2  Actions  of  forcible  entry  and  detainer  involve  sim- 
ply the  right  of  possession,  without  regard  to  the  question  of  title.3 
When  the  gist  of  a  cause  of  action,  whether  in  form  of  trespass 
to  try  title  or  in  any  other  form,  rests  upon  the  proposition  that 
the  title  to  land  asserted  by  the  plaintiff  is  superior  to  that  of  de- 
fendant, the  district  court  alone  has  jurisdiction.4  Where  a  sale  of 
land  under  execution  issued  by  a  justice  of  the  peace  is  voidable,  a 
suit  brought  to  avoid  such  sale,  after  the  deed  has  been  delivered, 
involves  the  title.8  So,  also,  as  to  a  proceeding  to  determine  the 
validity  of  an  execution  sale  of  a  house  which  was  sold  as  the  prop- 
erty of  one  who  had  built  it  on  land  of  another,  if  by  the  agree- 
ment under  which  the  house  was  built  it  became  attached  to  the 
realty.6  A  proceeding  to  enjoin  a  sale  of  the  homestead  under  exe- 
cution involves  the  title;7  but  it  is  held  otherwise  when  the  ques- 
tion is  whether  the  insurance  money  on  property  destro^yed  by  fire 
is  exempt  as  belonging  to  the  homestead.8  The  title  to  realty  is 
involved  in  a  proceeding  to  foreclose  a  chattel  mortgage  on  prop- 
erty which,  before  the  execution  of  the  mortgage,  had  become  at- 
tached to  the  soil  as  a  fixture.9 

1  Scripture  v.  Kent,  1  App.  C.  C.,  §  1056;  Bean  v.  Toland,  id.,  §  1022. 

2  Porter  v.  Porter,  2  App.  CL  C.,  §  433. 

3  Warren  v.  Kelly,  17  T.  544;  Camley  v.  Stanfield,  10  T.  546;  Smith  v.  Eyan,  20 
T.  661;  Clark  v.  Snow,  24  T.  242;  R  S.  2529.    Jurisdiction  is  conferred  in  this 
action,  however,  on  justices  of  the  peace.    R  S.  2522. 

4  Edwards  v.  Hefley,  3  Civ.  App.  465  (22  S.  W.  Rep.  659). 

*  Smith  v.  Perkins,  81  T.  152  (16  S.  W.  Eep.  805);  Weaver  v.  Nugent,  72  T.  272 
(10  S.  W.  Eep.  458). 

«Hanly  v.  Williams,  2  App.  C.  C.,  §  223;  Bean  v.  Toland,  1  App.  C.  C.,  §  122. 
^Cross  v.  Peterson,  1  App.  C.  C.,  §  1061. 

8  Porter  v.  Porter,  2  App.  C.  C.,  §  433. 

9  Gentry  v.  Bowser,  2  Civ.  App.  388  (21  S.  W.  Eep.  569). 


;  L]  DISTRICT   AN  I  l'_>7 

A  suit  to  enjoin  the  obstruction  of  an  easement,  and  for  dam 
involves  the  title  to  land.1  Not  s«>,  however,  where  the  action  is 
only  for  damages  to  an  easement.2  In  an  action  to  enjoin  a  par- 
ticular use  of  a  partition  wall,  and  for  general  relief,  the  title  and 
possession  of  the  land  are  so  far  involved  as  to  give  the  district  court 
iiction  without  alleging  any  amount  of  damages.1 

It  is  held  that  a  proceeding  to  condemn  land  does  not  involve  the 
1     IJut  in  a  later  case  it  is  held  that  a  county  court  would  have- 
no  jurisdiction  of  such  a  case  except  for  the  constitutional  provision 
t-in  powering  the  legislature  to  increase,  diminish  or  change  the  ju- 
rUdiction  of  the  county  court. ' 

The  county  court  has  no  jurisdiction  of  a  suit  to  remove  a  cloud 
from  title;'  nor  to  annul  and  cancel  deeds  and  other  instruments 
evidencing  title  to  land.7  It  has  jurisdiction  of  a  suit  for  damages  for 
trespass  on  land;8  as,  in  a  case  of  an  action  for  damages  for  taking 
and  carrying  away  lumber  placed  upon  land,  it  being  alleged  that 
defendants  maliciously  set  up  an  unfounded  claim  to  the  land,  well 
knowing  that  it  belonged  to  the  plaintiff.  These  allegations  are  held 
to  state  matter  of  inducement  on  which  to  base  a  claim  for  exem- 
plary damages.'  It  also  has  jurisdiction  of  an  action  for  dan; 
for  breach  of  warranty  of  title  to  land.10 

When  the  county  court  has  jurisdiction  of  a  cause  of  action,  and 
it  becomes  necessary  to  inquire  incidentally  into  the  title  to  land  in 
order  to  determine  the  question  of  liability,  it  has  jurisdiction  to 

1  Hahy  v.  K&enig,  2  U.  C.  439;  Gascamp  v.  Drews,  2  App.  C.  C.,  §  95;  Scripture 
nt,  1  App.  C.  C.,  S  1057. 

*  G..  C.  &  &  F.  Ry.  Co.  v.  Thompson,  2  App.  C.  C.,  §  568;  G.,  C.  &  B.  F.  Ry.  Co.  v. 
Graves,  1  App.  C.  C,  £  579. 

»  Dauenhauer  v.  Devine.  51  T.  480. 

«G.,  C.&S.F.  Ry.  Co.  v.  Mud  Creek  L  A.  &  M.  Co.,  1  App.  a  C.,  §  397. 
»G.,  C.&S.F.  Ry.  Co.  v.  Tacquard,  3  App.  C.  C.,  g  141. 
•Greenwood  v.  Watts,  1  App.  C.  C.,  g  116;  Graves  v.  Fay,  id.,  §  134. 

7  Bean  v.  Toland,  1  App.  C.  C.,  §  1022. 

8  Owens  v.  Prather,  1  App.  C.  C.,  §  1181:  Brown  v.  Brown.  8  App.  C.  C.,  ? 

•  Hatch  v.  Allan,  8  App.  C.  C.,  §  229.     The  county  court  has  jurisdiction  of  an 
action  for  damages  caused  by  defendant's  opening  the  fence  ami  turning  his 
cuttle  on  plaintiff's  land,  though  it  may  be  necessary  to  inquire  as  to  the  posi- 
tion of  the  division  fence.    Claunch  v.  Osborn.  28  8.  W.  Rep.  937. 

'«  Williams  v.  Truitt,  1  App.  C.  C.,  §  519;  McGregor  v.  Tabor,  26  S.  W.  Rep.  443. 
The  county  court  had  no  jurisdiction  in  an  action  upon  a  bond  given  by  the 
vendors  of  a  tract  of  land,  conditioned  that  they  should  clear  the  title  sold  to  a 
part  of  the  tract,  which  was  in  possession  of  the  vendee  at  the  time  of  his  pur- 
chase The  litigation  involved  title  to  land.  Edwards  v.  Hefley,  8  Civ.  A: 

W.  Rep.  659).     Where  suit  was  brought  in  the  county  court  to  estaMish 

title  to  a  land  certificate,  and  pending  suit  the  certificate  was  located,  the  court 

•rived  of  jurisdiction  in  the  matter,  as  it  is  without  constif.i- 

1  power  to  adjudicate  the  title  to  land.    Myers  v.  Jones,  4  Civ.  App.  330 

\V.  Rep.  302>. 


128  JURISDICTION.  [§H2. 

pass  upon  such  question  in  order  properly  to  decide  the  cause  before 
it.  Thus,  where  plaintiff  sued  for  the  value  of  pine  timber  which 
he  alleged  he  sold  to  defendant,  and  a  third  party  intervened  and 
claimed  title  to  the  timber  on  the  ground  that  he  owned  the  land 
from  which  the  timber  was  cut,  it  was  error  to  dismiss  the  inter- 
vention on  the  ground  that  title  to  land  was  involved.1  The  same 
ruling  was  made  where  plaintiff  sued  for  the  value  of  gravel  taken 
from  land,  and  defendant  denied  plaintiff's  title  and  claimed  title  in 
himself.2 

§  112.  Enforcement  of  liens  on  land. 

The  constitution  vests  in  the  district  court  original  jurisdiction 
for  the  enforcement  of  liens  on  land,  and  the  statute  denies  all  juris- 
diction in  the  county  court.3  It  is  held  that  the  jurisdiction  was 
intended  to  be  exclusive  without  the  aid  of  the  statute,  and  that 
such  was  the  ruling  under  the  constitution  of  1845,  and  each  one 
subsequently  adopted.4  The  liens  intended  are  such  as  are  created 
by  the  act  of  the  parties,  exist  before  the  suit  is  commenced,  and 
form  the  basis  of  it,  or  an  important  part  of  the  same,  such  as  mort- 
gages, deeds  of  trust,  vendor's  and  mechanic's  liens,  and  others  of 
like  character.  They  are  such  as  must  be  alleged  in  the  pleadings 
of  the  cause  wherein  the  foreclosure  is  sought.  But  it  is  held  that 
such  liens  as  are  created  by  the  levy  of  an  attachment  or  execution, 
or  the  rendition  of  a  judgment  in  a  court  of  record,  were  not  con- 
templated.5 The  assertion  of  a  lien  of  the  kind  intended  gives  juris- 
diction to  the  district  court  without  reference  to  the  amount  in 
controversy.6 

Where  the  subject-matter  of  a  suit  is  the  validity  of  a  mortgage 
on  houses  built  on  leased  land,  and  the  facts  are  not  alleged  show- 

1  Melvin  v.  Chancy,  8  Civ.  App.  252  (28  S.  W.  Rep.  241). 

2  City  of  Victoria  v.  Schott,  29  S.  W.  Rep.  681. 
8  Const,  art,  V,  §  8:  R.  S.  1157. 

4  Hillebrand  v.  McMahan,  59  T.  450,  citing  Marshall  v.  Taylor,  7  T.  235;  Lane 
v.  Howard,  22  T.  8;  Hargrove  v.  Simpson,  25  T.  396;  Preston  v.  Breedlove,  45 
T.  48. 

8  Hillebrand  v.  McMahan,  59  T.  450.  This  case  is  followed  in  Newton  v.  Heiden- 
heimer,  2  App.  C.  C.,  §  126,  where  it  is  held  that  a  county  court  may  enforce  an 
attachment  lien  on  land;  but  in  other  cases  the  contrary  view  is  held.  Shandy 
v.  Conrales,  1  App.  C.  C.,  §  238;  Rowan  v.  Shapard,  2  App.  C.  C.,  §§  295,  302; 
Miller  v.  Schneider,  id.,  §  372;  Wright  v.  Cullers,  id.,  §  750.  This  conflict  of  opin- 
ion, it  is  said,  gave  occasion  for  the  statute  of  1885.  R.  S.  214.  A  citizen  of 
Georgia  sued  another  citizen  of  that  state  in  the  county  court  of  Montgomery 
county,  Texas,  to  recover  upon  promissory  notes,  and  foreclose  an  attachment 
upon  land  in  said  county.  The  county  court  had  jurisdiction  to  cause  the  levy 
of  the  writ  upon  the  land,  and  to  enforce  the  levy  by  foreclosure,  Grizzard  v. 
Brown,  2  Civ.  App.  584  (22  S.  W.  Rep.  252). 

6  Joiner  v.  Perkins,  59  T.  300;  Handel  v.  Elliott,  60  T.  145;  Lacroix.  v.  Evans,  1 
App.  C.  C,,  §  673;  T.  &  P.  Ry.  Co.  v.  McMullen,  id.,  §  161. 


§   113.]  I.I-IIM.    I      AN'  129 

in-;  them  to  be  personal  property.  tin-  c.>unty  court  lias  no  jurisdic- 
tion.1     Where.  before  a  chattel  iimrtu1  iven  thereon,  machin- 

mcfa  M  a  corn  mill,  steam-eno;ine,  and  press,  with  belting,  etc., 
is  so  attached  to  realty  as  to  become  a  fixture,  and  part  thereof,  tho 
county  court  is  \vithoiit  jurisdiction  to  foreclose  such  mortgage.2  A 
comity  court  has  no  jurisdiction  of  a  suit  to  enforce  a  lion  on  the 
and  mad-bed  ..f  a  railroad.1 


113.  Trial  of  the  right  of  property. 

Tht>  courts  point  out  a  conflict  I  ><>t  ween  the  provisions  of  the  con- 
stitution cont'crriiii:  jurisdiction  on  the  district  and  county  courts. 
Jurisdiction  is  given  to  the  district  court  where  the  amount  in  con- 
troversy shall  be  equal   to  or  exceed  in  value  s."  .....  .  and  exclusive 

jurisdiction  is  given  to  the  county  court  when  the  amount  is  | 
lint  const  ruinir  section  8  of  article  V  with  section  10  of  article  V  of 
the  constitution,  under  the  rule  which  requires  that  a  general  pro- 
vision shall  yield  to  a  special  provision,  it  is  held  that  the  district 
courts  have  jurisdiction  of  all  suits  for  the  trial  of  the  right  of 
property  levied  on  by  any  writ  of  sequestration  or  attachment, 
when  the  property  levied  on  shall  be  equal  to  or  exceed  in  value 
That  jurisdiction  was  excepted  out  of  the  jurisdiction  given 
to  the  county  courts  by  the  same  article.  Articles  1098  and  1157 
of  the  Revised  Statutes,  delminir  the  jurisdiction  of  the  district  and 
county  courts,  are  in  accordance  with  the  true  construction  of  tho 
constitutional  provisions  above  referred  to;  and  so  much  of  article 
5995,  Revised  Statutes,  as  attempts  to  confer  jurisdiction  in  such 
on  the  county  court,  when  the  property  is  of  the  value  of 
.  is  inoperative  and  void.4  It  is  held,  however,  that  where  the 
levy  on  property  is  under  a  distress  warrant,  and  not  by  virtue  of 
a  writ  of  execution,  sequestration  or  attachment,  the  county  court 
lias  jurisdiction  where  the  property  is  valued  at  *500.4 

The  assessment  of  value  placed  on  property  by  the  officer  who 

•hi  v.  Brown.  •„»  A  pp.  C.  C.,  §  541. 

try  \.  Bowser,  -'  Civ.  A  pp.  388  (21  S.  W.  Rep.  5C9).     A  writ  of  s.«p. 
timi.  issui-d  in  ;m  action  in  the  county  court  to  foreclose  a  chattel  mortgage, 
li  ivinir  I  »een  levied  (.11  certain  machinery,  the  defendant  pleaded  that  such  ma- 
chinery was  a  fixture  t<>  realty,  and  attached  as  such  to  his  h<nne-teail  place 
when  the  niortL'aur'-  was  ^ivt-n.     A  demurrer  to  such  answer  and  plea.  ur_ 
the  ground  that  the   court   had  no  jurisdiction   to  d.-t.-rinine   the   ownership  of 
t'i"  land,  was  improperly  sustained,  and  tin-  court  had  jmwer  to  determine  its 
.jurisdiction  MV.T  tin-  sul>ject-matter  of  tin-  suit,  whether  the  allegation  discloa- 

want  of  Mich  jurisdiction  appeared  in  the  petition  or  in  the  anawec, 
T.  ,v  P.  By.  Co,  v'.  Mc.Mullen.  1  A  pp.  Q  CL,  ?  ITS. 
«  Erwin  v.  Blanks.  r,n  T.  B88;  «  'l.-vdand  v.  Tuft-,  r.'.i  T.  r.^i  (t  S.  \V.  H,  ; 

Maraalia,  "  T.  «;-j  (ij  s.  \v.  i;.-,,.  686);  w.-tz.-l  v.  Biota  -  S.  W. 

ton  v.  Bchob,  s">  'l\  HI    M  ft  \\".  i;.  p  H  :  ll.-idenheimer  v. 

KempiuT.  1  App.C.  a,  g  i:-.':   C...Idard   v.  1'n.l-r-.  1   App.  C.  C.,  §  1T3. 
*St.  Louis  Typ  •  Foundry  v.  Taylor,  6  C'iv.  App.  7:W  (2»  S.  W.  Rep.  226). 
9 


130  JURISDICTION.  [§§  114,  115. 

seizes  it  under  attachment  should  determine  the  jurisdiction  on  the 
trial  of  the  right  of  property,  and  not  its  value  as  subsequently  as- 
certained on  trial.1  Where  no  indorsement  of  value  is  made  upon 
the  claim  bond,  the  statements  of  value  in  the  affidavit  and  bond 
are  sufficient  to  determine  the  question  of  jurisdiction.2 

Where  the  action  is  simply  an  action  of  sequestration,  and  there 
is  no  trial  of  the  right  of  property,  the  county  court  has  jurisdic- 
tion though  the  value  of  the  property  is  in  excess  of 


§  114.  Trial  of  right  to  office. 

The  district  court  has  jurisdiction  to  try  the  right  to  an  office  in 
a  suit  brought  for  its  recovery  by  a  party  claiming  a  right  to  it  as- 
against  one  who  has  usurped  the  office  and  holds  possession  of  it 
wrongfully,  provided  its  value  is  $500,  or  more.4  Where  a  person 
was  elected  and  qualified  as  mayor  of  a  city,  the  office  at  the  time 
having  no  salary  or  compensation,  but  the  city  council  afterwards,, 
under  a  provision  of  the  charter,  fixed  the  salary  at  $1,200,  it  was 
held  that  this  invested  the  office  with  a  value  which  entitled  the 
person  to  his  action  in  the  district  court  for  the  trial  of  the  right 
to  the  office.5 

§  115.  Eemoval  from  office. 

The  district  court  has  original  jurisdiction  of  all  misdemeanors 
involving  official  misconduct,6  and  the  statute  mentions  certain  offi- 
cers that  may  be  removed  from  office  by.  the  district  judge.7 

The  district  court  has  jurisdiction  to  determine  whether  a  county 
treasurer  has  been  guilty  of  such  official  misconduct  as  would  au- 
thorize his  removal  in  a  suit  brought  by  the  state  having  that  ob- 
ject in  view,  and,  if  guilty,  it  has  the  power  to  remove  him.  In 
such  a  suit  the  defendant  may  show  that  the  acts  which  are  charged 
to  have  constituted  "  official  misconduct "  were  legal  acts ;  or,  if  not 
legal,  that  they  were  done  under  circumstances  which  negatived 
the  idea  of  wilful  wrong.8 

i  Cleveland  v.  Tufts,  69  T.  580  (7  S.  W.  Rep.  72);  Carney  v.  Marsalis,  77  T.  62 
(13  S.  W.  Rep.  636);  Harris  v.  Hood,  1  App.  C.  C.,  §  573. 

2Leman  v.  Borden,  83  T.  620  (19  S.  W.  Rep.  160). 

3  Morrow  v.  Short,  3  App.  C.  C.  §  31. 

«  State  v.  Owens,  63  T.  261;  McAllen  v.  Rhodes,  65  T.  348;  Bell  v.  Faulkner,  84 
T.  187  (19  S.  W.  Rep.  480). 

»  Krakauer  v.  Caples,  5  Civ.  App.  264  (23  S.  W.  Rep.  1036). 

6  Const.,  art.  V,  §  8. 

7  R,  S.  3531. 

8  Caruthers  v.  State,  67  T.  132  (2  S.  W.  Rep.  91).    In  this  case  it  is  said,  "  there 
can  be  no  question  as  to  the  jurisdiction  of  the  district  court.    .    .    .    The  pro- 
ceeding is  one  to  take  from  the  appellant  an  office  —  a  thing  of  value  —  to  which 
he  was  elected  by  the  people,"  but  no  other  reason  is  assigned  for  holding  the 
jurisdiction  to  be  in  the  district  court. 


i»>,  117.]  UICT   AND   COUNTY   COUETS.  131 

§116.  Motions  against  officers  of  court. 

'I'll.-  district  court  has  power  to  hear  and  determine  all  motions 
ist  sheriffs  ami  other  officers  of  the  court  for  failure  to  pay 
over  moneys  collected  under  the  process  of  said  court,  or  other  de- 
falcation of  duty  in  connection  with  such  process,  and  of  motions 
ttorneys  for  moneys  collected  by  thorn  and  not  paid  ov.-r.1 
The  same  power  is  also  conferred  upon  county  courts,  with  the  ex- 
ion  of  the  provision  in  respect  to  attorne 

Motions  against  officers  for  failure  to  indorse  the  time  of  receiv- 
ing executions,  or  for  making  a  false  indorsement,  are  made  in  the 
court  from  which  the  execution  issued ; 3  also  for  refusal  to  pay  over 
money  collected  on  execution ; 4  or  for  failure  to  levy  and  sell ; 5  or 
failure  to  return  an  execution.8 

S  117.  Jurisdiction  in  equity. 

The  jurisdiction  vested  in  the  district  and  county  courts  may  be 
exercised  without  regard  to  any  distinction  between  law  and  equity, 
and  they  may  grant  any  relief  which  could  be  granted  by  courts 
either  of  law  or  equity.7 

i  R  S.  1100. 

2RS.  1160. 

»R.  - 

«R  -  '••  Witt  v.  Dunn,  15  T.  106;  Beaver  v.  Batte,  19  T.  Ill;  De  La 

v.  Hooth,  28  T.  478. 

»  R  S.  2386. 

•  R  S.  2387. 

"  Const.,  art.  V.  ?  $;  R  S.  1106.  1162,  1191.    Before  the  enactment  of  the  stat- 
ute of  1895,  it  was  held  that  a  district  court  had  no  power  to  try  cases  of  con- 
:  election  for  county  seats,  and  that  a  court  of  equity  would  not  try  and 
determine  such  a  question  on  an  application  for  injunction  in  cases  involving 
the  right  to  an  office.    If,  however,  the  action  has  its  basis  in  the  assertion  of  a 
ri^ht  involving  pecuniary  interest  not  originating  in  the  election,  it  is  held  that 
an  inquiry  can  be  made  as  to  the  legal  effect  of  an  election  when  the  election  is 
s-t  up  to  defeat  such  a  ri^ht;  in  su<-h  a  suit,  whatever  may  be  the  form  of  ac- 
tion, the  vote  on  removing  a  county  seat  could  be  inquired  into  and  its  proper 
•  fleet  determined.     Caruthers  v.  Harnett.  07  T.  l.i    .'  8.  \\".  !:• 
:  1895,  page  58,  for  provisions  for  contesting  flections.   R  S 
to  set  aside  a  judgment  of  the  supreme  court,  affirming  a  judgment  of  the  : 
court  ajrainst  hiin^-lf  :ind  another  .•!•<  -mvti,^  on  the  appeal  bond,  and  to  enjoin 
the  execution  isMied  thereunder.  uj>on  the  Around  that  tin-  ap|«  al  bond  purpott- 
have  been  executed  by  him  had   never  U-en  signed  by  him.  and  that  his 
signature  to  it  was  forged.    It  was  held  that,  if  the  facts  a!  \\  n  to 

be  true,  the  execution  might  be  perpetually  enjoined,  and  that  the  district  court 
had  jurisdiction  of  the  suit  to  enjoin.  The  supreme  court  could  obtain  jm 
tion  over  the  person  of  the  plaintiff  in  error  as  surety  on  the  appeal  bund  by  his 
voluntary  act  in  signing  it;  but  if  in  fact  he  never  signed  it,  he  never  became  a 
to  the  proceeding,  and  no  power  to  render  a  judgment  against  him  was 
ever  obtained  by  the  supreme  court.  The  original  jurisdiction  properly  belonging 
to  courts  of  equity  is  vested  in  the  district  court.  The  supreme  court  possesses  no 
such  powers.  Its  jurisdiction  is  appellate,  and  hence,  when  the  aid  of  equity  is 
sought  to  afford  relief  to  which  a  party  is  entitled  against  its  judgments,  the 


132  JURISDICTION".  [§  118. 

The  right  of  a  judgment  creditor  to  apply  by  motion  to  the  court 
in  which  his  judgment  was  obtained  to  set  aside  a  sale  which, 
through  irregularities  in  making  it,  has  resulted  in  a  sacrifice  of  the 
property,  has  been  recognized  by  our  supreme  court  in  many  cases. 
Courts  of  equity  have  always  entertained  such  motions.  The  rea- 
son for  the  exercise  of  such  a  power  over  a  purchaser  who  is  a 
stranger  to  the  original  suit  is  that  by  a  purchase  under  its  process 
he  submits  himself  to  the  jurisdiction  of  the  court  over  such  pro- 
cess, and  becomes  subject  to  its  power  to  revoke  an  improper  sale. 
The  jurisdiction  is  simply  that  which  the  court  obtained  over  the 
subject-matter  in  the  original  action.  By  the  rendition  of  the 
judgment  it  was  not  exhausted,  but  continued  in  full  force  in  order 
to  secure  to  the  plaintiff  the  fruits  of  his  recovery.  It  required  the 
issuance  and  lawful  execution  of  process,  and  involved  the  power 
to  control  the  sheriff  in  the  performance  of  his  duty,  and  to  pre- 
vent not  only  him  but  all  other  persons  from  abusing  the  writ.  A 
purchaser  under  its  writ  took  such  title  as  he  thereby  obtained 
subject  to  the  power  in  the  court  to  see  that  the  sale  was  properly 
and  lawfully  conducted,  and  to  revoke  it  if  it  was  not.  The  fact 
that  the  sale  was  made  and  the  purchaser  resided  in  another  county 
cannot  affect  this  power.  To  hold  that  it  does  would  cripple  the 
power  of  the  court  to  render  complete  relief  to  the  party  who 
had  secured  its  judgment,  and  make  its  decrees  dependent  on  the 
action  of  other  tribunals  for  adequate  enforcement.  The  statutes 
regulating  venue  have  reference  to  original  actions,  and  not  to  such 
auxiliary  proceedings  as  are  involved  in  the  exercise  of  jurisdiction 
in  cases  over  which  it  has  already  vested.1 

The  district  court  has  no  jurisdiction  to  decree  the  cancellation 
of  a  deed  for  the  sale  of  land  on  the  ground  of  fraud  in  the 
vendor,  when  the  purchase-money,  exclusive  of  interest,  the  recov- 
ery of  which  is  sought,  is  less  than  8500,  there  being  no  controversy 
involving  title,  a  reconveyance  of  the  title  being  tendered  by  the 
plaintiff.2  • 

§  118.  Power  to  issue  writs. 

The  district  courts  and  the  judges  thereof  have  power  to  issue 
writs  of  habeas  corpus,  mandamus,  injunction  and  certiorari,  and  all 
writs  necessary  to  enforce  their  jurisdiction.3  The  county  court  or 
judge  thereof  has  power  to  issue  writs  of  injunction,  mandamus, 
and  all  writs  necessary  to  the  enforcement  of  the  jurisdiction  of  the 

district  court  and  not  the  supreme  court  is  the  proper  forum  in  which  to  insti- 
tute the  proceedings.    Stapleton  v.  Wilcox,  2  Civ.  App.  542  (21  S.  W.  Rep.  972). 

1  Hansbro  v.  Blum,  3  Civ.  App.  103  (21  S.  \7.  Rep.  270). 

2  Mixan  v.  Grove,  59  T.  573. 
2  Const,  art.  V,  §  8. 


§118.]  :.n  r  AM-  i-'-rxTv  COURTS.  133 

court.1     The  statutory  provision   is.  that  tin-  judges  of  the  <1N 
and  county  courts  shall  have  authority,  either  in  term  time  or  in 
vacation,  to  grant   writs  of  ///-////////// //*,  injunction,  sequestration, 
attachment,  ^arnislnnent,  ••,  /•//../•,//•/'  and  *HJ>,  /•*.  •/•  <i«,  ami  all  other 
writs  necessary  to  the  enforcement  of  the  jurisdiction  of  the  court.2 

The  constitution  of  1^7'!.  prior  to  the  amendment, empowered 
the  district  court  to  issue  the  writ  of  //.///-//*  <•<„•////...  in  felony  cases. 
I'nder  the  amendment  it  has  power  to  issue  the  writ  in  all  cases  in 
which  such  writ  is  a  proper  remedy  under  the  established  rules  of 
law.  whether  such  cases  be  of  a  civil  or  a  criminal  nature.5 

There  seems  to  have  been  some  difficulty  and  confusion  in  con- 
struing and  applying  the  constitutional  provisions  granting  power 
to  issue  writs  of  injunction,  etc.  It  will  be  noticed  that  the  power 
is  conferred  upon  the  district  and  county  courts  by  the  use  of  the 
same  words  —  they  have  power  to  issue  certain  specified  writs,  "and 
all  writs  necessary  to  enforce  their  jurisdiction."  The  settled  rule 
now  seems  to  be  this:  The  district  court  has  power  to  issue  the 
writ  of  injunction,  for  instance,  not  in  cases  alone  where  its  juris- 
diction has  attached  by  reason  of  the  subject-matter  or  amount  in 
controversy,  but  in  all  cases  in  which  a  court  of  chancery  would 
have  power  to  issue  the  writ,  under  the  settled  rules  of  equity:4 
but  the  county  court  can  issue  the  writ  only  in  cases  over  which  it 
has  jurisdiction  by  reason  of  the  amount  in  controversy.  It  has  no 
power  to  issue  an  injunction  except  to  enforce  its  jurisdiction,  either 
original,  or"  appellate  or  supervisorv/'  It  ha>  no  power  to  enjoin  a 
tax  or  a  judgment  for  less  than  $200,6  nor  to  issue  a  ///<///>/-//// //.v 
unless  the  amount  involved  be  within  its  jurisdiction.7  ,It  is  held 
that  the  authority  uiven  to  the  district  courts  to  issue  the  writs 
mentioned  is  a  general  authority,  and  that  the  power  to  issue  all 
other  writs  necessary  to  enforce  their  jurisdiction  is  superadded." 
This  would  appear  to  be  the  obvious  and  necessary  construction  of 

1  Const.,  art.  V,  g  16. 

2RS.  HOT,  lit;.;. 

'Legate  v.  Legate,  ST    I".  >  H  (28  a  W.  Rep.  281).     And  see  Stirman  v.  Turner, 

4  Ap|>.  C.  0..  £  140.  when'  it   was  held  that  tin-   county  murl  lia>l  jurisdiction  M 

issue  a  writ  of  habeas  corjiii*  on  the  allegation  by  a  father  that  his  minor  child 

!1. orally  restrained  of  his  liberty.  <>n  the  ground  that  tli-  offense  charged 

was  within  the  jurisdiction  of  tin-  court. 

« And(-rs,,n  County  v.  K.-mu-dy.  :•*  T.  fill};  Alexander  v.  Holt.  .V.»  T.  •-'"-.;  Day 
v.  Chaml..-,,.  (5-j  T.  UMI:  St.-in  v.  Kr.-iJ..-rtf.  fit  T.  -j;i:  Kf.-l  r.Jobl  Mi 

••udrick  v.  Sin.;,.  1  .\|i|i.  C.  C..  X'.M-.':  JJrsint  v.  guinn.  id..  ?  : 

•Omv.-s  \.  Fry.  1  A].|..  ( '.  (\.  £  IMI:  Moi-ki-r-niith  v.  I.on-.  id.,  .x  .V,  I ;  rind.-n- 
M<»,-k  v.  McKrllar.  id.,  jj  Bfl7;  «':irlil.-  \.  Kldri.lK'1.  '  "  v-  Vninj;.  id.. 

£  r.MO;  Lackie  v.  Hraml.-tt.  id..  ?  n  r»M  r.8m*lLkL,§  UM:  M.-Mnhan 

%     I'.-nnis.  id.,  i  TJn'.c   r..-w--r  v.  \Viil,-tt.  id..  , .  J91. 

:•-*•••   v.    I)U].r.-r.    1    A|.|..   I 

v  v.  I'liaiul-r-.  »;•.'  T.  190. 


13  ±  JURISDICTION.  [§  118. 

the  language  used,  and  it  is  not  apparent  from  the  cases  on  what 
particular  provision  of  the  constitution  the  distinction  between  the 
respective  powers  of  the  courts  is  based.  The  ruling  is,  however, 
that  the  power  vested  in  the  county  courts  is  not  a  general  power,1 
but  that  they  have  power  to  issue  a  writ  of  injunction  only  to  en- 
force their  jurisdiction,  or  as  an  auxiliary  to  some  proceeding  within, 
their  jurisdiction;2. and  that  it  appears,  from  a  fair  construction  of 
the  language  used,  that  in  conferring  the  power  on  county  courts 
the  intention  was  to  limit  its  exercise  to  the  enforcement  of  the  ju- 
risdiction of  the  court.3 

In  a  proceeding  to  enjoin  a  state  tax  on  real  estate,  objection 
was  made  to  the  jurisdiction  of  the  district  court  on  account  of  the 
amount  in  controversy.  The  court  say :  "  If  the  petition  stated  a 
case  in  which,  on  settled  principles,  equity  would  interpose  to  pre- 
vent the  collection  of  a  state  tax  by  enjoining  the  sale  about  to 
be  made,  it  would  be  strange,  indeed,  if  tho  district  court,  in  a  case 
affecting  the  title  to  land,  and  the  enforcement  of  a  lien  on  land, 
should  have  no  power  to  grant  relief.  The  amount  involved  being 
still  too  small,  the  county  court  would  be  also  without  jurisdiction, 
and  the  remedy,  if  any,  would  be  in  the  justice's  court.  This  re- 
sult is  one  which,  in  a  case  requiring  it,  might  well  cause  a  careful 
review  of  the  decisions  claimed  to  lead  to  it." 4  It  will  be  per- 
ceived that  the  difficulty  is  not  met  and  overcome  here,  because  the 
power,  after  all,  is  referred  to  the  grant  of  jurisdiction  to  the  dis- 
trict court  to  adjudicate  in  matters  in  which  title  to  real  estate  is 
involved.  If  it  had  been  a  proceeding  to  enjoin  the  execution  of 
a  judgment,  the  subject-matter  or  amount  in  controversy  not  be- 
ing within  the  jurisdiction  of  a  district  or  county  court,  then  the 
result  would  certainly  have  required  a  review  of  the  cases.  The 
difficulty  arose  from  the  construction  of  the  grant  of  power  to 
issue  writs  —  in  holding  that  they  could  be  issued  only  to  enforce 
the  jurisdiction  of  the  court  in  cases  in  which  jurisdiction  had  been 
expressly  conferred, —  and  the  difficulty  was  never  fully  stated 
until  the  case  of  Day  v.  Chambers,5  where  it  is  expressly  held  that 
a  general  authority  is  given  to  the  district  courts  to  issue  the  writs 

1  Grant  v.  Quinsell,  1  App.  C.  C.,  g  733. 
2Lackie  v.  Bramlett,  1  App.  C.  C.,  §  1129. 

3  Bowser  v.  Willett,  1  App.  C.  C.,  §  401. 

4  Red  v.  Johnson,  53  T.  284.    For  a  case  in  point  see  Wheeler  &  Wilson  Mfg. 
Co.  v.  Whitener,  2  App.  C.  C.,  §  15.     In  this  case  Whitener  had  a  judgment  in  a 
justice's  court  against  the  company  for  $125,  upon  which  execution  issued  and 
was  levied  upon  certain  property  of  the  company  valued  at  §400.    The  company 
obtained  an  injunction  from  the  county  judge  enjoining  the  enforcement  of  the 
judgment,  and  upon  a  hearing  it  was  held  that  the  amount  in  controversy  was 
the  amount  of  the  justice's  judgment,  and  that  the  county  court  had  no  juris- 
diction to  grant  the  injunction. 

*62T.  190. 


;!  1  IS.]  HIM  ;    COURTS. 

of  //-  unction  and  •••  ri  nd  that  the  further  power 

AAV,  to  issue  all  writs  n<  to  enforce  their  jui 

tion.  This  construction  is  also  recognized  in  a  later  case  in  tho 
court  of  civil  appeals,  where  a  writ  of  prohibition  was  applied  for 
to  prevent  proceedings  in  a  justice's  court.  The  reasoning  of  tho 
court  appears  plainly  to  be  that  the  district  court  has  a  general 
authority  to  issue  the  writs  enumerated,  and  all  other  writs  that 
may  be  necessary  to  enforce  its  jurisdiction;  that  as  the  writ 
of  prohibition  is  not  one  of  the  enumerated  writs,  it  cannot  be  is- 
under  its  general  authority,  but  only  in  aid  of  its  jurisdiction 
in  a  case  over  which  jurisdiction  is  conferred  by  some  other  pro- 
:i.  The  court  say:  "If  the  provision  of  the  constitution  in 
ion  had  included  prohibition,  as  it  did  injunction  and  the  other 
named  writs,  it  would  have  been  within  the  jurisdiction  of  the  dis- 
trict court  to  issue  such  writs  in  all  cases  that  were  permitted  under 
the  principles  and  usages  of  common  law  and  equity  practice."  l 
So  it  seems  that  as  respects  writs  of  injunction,  at  least,  the  re- 
sult of  the  cases  is  this:  If  equitable  grounds  are  stated  in  the  bill, 
the  district  court  may  issue  the  writ  without  reference  to  the  sub- 
ject-matter or  amount  in  controversy;  if  the  power  of  the  court  is 
invoked  in  respect  to  a  matter  of  legal  cognizance  simply,  which 
it  may  adjudicate  by  virtue  of  its  constitutional  jurisdiction,  then 
reference  must  be  had  to  the  subject-matter  or  the  amount  in  con- 
troversy to  determine  whether  the  district  or  the  county  court  is 
the  proper  forum. 

Article  •_".<>',»  of  the  Revised  Statutes  provides  that  the  judges  of 
the  district  and  county  courts  may  grant  writs  of  injunction  (1)  when 
it  appears  that  the  party  applying  is  entitled  to  the  relief  de- 
manded, and  such  relief,  or  any  part  thereof,  requires  the  restraint 
of  some  act  prejudicial  to  the  applicant,  (2)  to  restrain  acts  pending 
litigation,  and  i.oj  k%  in  all  other  cases  where  the  applicant  for  such 
writ  may  show  himself  entitled  thereto  under  the  principles  of 
equity." 

In  a  proceeding  by  fuibeaa  corpus  by  a  father,  alleging  that  his 
minor  child  was  illegally  restrained  of  his  liberty,  the  court  >;iy  : 
••  Kven  if  the  power  to  issue  the  writ  must  be  limited  to  cases  in 
which  that  process  is  necessary  to  enforce  the  jurisdiction  of  the 
court,  we  think  this  case  would  come  within  the  scope  of  such 

1Seele  v.  State,  1  Civ.  App.  495  (20  S.  W.  Rep.  946).  The  district  court  issued 
an  injunction  to  enjoin  a  judgment  of  a  justice  of  the  peace  for  $10,  on  tho 
ground  that  the  judgment  was  void  for  want  of  service  of  citation,  an.l  it  WM* 
h« -Id  that  thf  injunction  was  properly  grant*-'!,  and  the  court,  having  aciiuin-d 
jurisdiction  by  reason  of  its  i>«tr,  r  to  grant  th?  injunction,  rouM  i>r'« ••  •<•  I  to  try 
the  cause,  although  the  amount  was  helow  its  jurisdiction.  O..  C.  &  S.  F.  Ky. 
Co.  v.  Srhn.-id.-r.  •>  S.  \V.  Rep.  200.  To  the  same  eftV  kman  v.  White, 

29  S,  W.  Rep.  69i 


136  JURISDICTION.  [§  119, 

power,"  on  the  ground  that  county  courts  are  given  a  general  juris- 
diction over  the  estates  of  minors.1 

The  district  court  has  jurisdiction  of  a  quo  warranto  brought  on 
the  relation  of  an  individual  to  test  the  validity  of  a  reorganization 
of  a  municipal  corporation.2 

Where  defendant  attached  a  debtor's  goods  in  a  justice  court  and 
plaintiff  sued  out  an  attachment  against  goods  of  the  same  debtor 
in  the  county  court  a  short  time  thereafter,  it  was  held  that  if  the 
attachment  of  defendant  was  in  fact  void  its  execution  could  be 
prevented  by  proper  proceedings  in  the  county  court  cause,  and 
that  plaintiff  could  not  enjoin  its  execution  in  the  district  court 
under  section  8,  article  Y,  of  the  constitution,  giving  that  court 
jurisdiction  where  the  law  or  constitution  affords  no  remedy ;  the 
cause  of  action  being  within  the  jurisdiction  of  the  county  court, 
that  court  had  power  to  enjoin  the  execution  of  an  order  of  sale.3 

The  county  court  may  issue  a  writ  of  sequestration  for  the  re- 
covery of  specific  personal  property,  where  the  property  does  not 
exceed  $1,000  in  value,  the  controversy  being  solely  between  plaint- 
iff and  defendant.4 

§  119.  Appellate  and  supervisory  jurisdiction  of  the  district  courts. 

The  district  court  has  appellate  jurisdiction  and  general  control 
in  probate  matters  over  the  county  court  established  in  each  county 
for  appointing  guardians,  granting  letters  testamentary  and  of  ad- 
ministration, probating  wills,  for  settling  the  accounts  of  executors, 
administrators  and  guardians,  and  for  the  transaction  of  all  busi- 
ness appertaining  to  estates;  and  original  jurisdiction  and  general 
control  over  executors,  administrators,  guardians  and  minors,  under 
such  regulations  as  may  be  prescribed  by  law.  It  has  appellate  ju- 
risdiction and  general  supervisory  control  over  the  county  commis- 
sioners' court,  with  such  exceptions  and  under  such  regulations  as- 
may  be  prescribed  by  law.5 

In  all  counties  in  which  the  civil  and  criminal  jurisdiction,  or 
either,  of  the  county  courts  has  been  transferred  to  the  district 
courts,  appeals  and  writs  of  certiorari  may  be  prosecuted  to  remove 
a  case  tried  before  a  justice  of  the  peace  to  the  district  court,  in  the 
same  manner  and  under  the  same  circumstances  under  which  appeals 
and  writs  of  certiorari  are  allowed  by  general  law  to  remove  causes, 
to  the  county  court.6 

1  Stirman  v.  Turner,  4  App.  C.  C.,  §  140 

2  State  v.  Dunson,  71  T.  65  (9  S.  W.  Rep.  103). 
'McRimmon  v.  Moody,  87  T.  260  (27  S.  W.  Reo.  780X 
*  Morrow  v.  Short,  3  App.  C.  C.,  §  31. 

5  Const.,  art.  V,  §  8. 

6  R.  S.  1669. 


§  119.]  AND   COrXTY   CO! 

Under  the  constitution  of  1845  the  district  courts  had  the  power 
-ne  all  writs  necessary  to  euforce  their  own  jurisdiction,  and  to 
giv.-  tin-in  ovncral  ropnintendenoe  and  control  over  inferior  juris- 
dictions. P>ut  a  supervisory  control  is  not  conferred  by  the  consti- 
tution of  l^7''-.  either  1>>"  the  power  to  issue  writs  or  otherwise. 
I'nder  the  old  constitution  writs  of  injunction  were  resorted  to 
where  the  remedial  power  of  a  court  of  chancery  would  lie  author- 
i»ut  the  most  common  remedy  to  supervise  proceedings  of  in- 
'•  courts  was  by  ••,  rin>,->i  r'< }  But  the  jKjwer  of  the  district  court 
to  interfere  was  always  referred  to  the  power  to  issue  writs  to  give 
it  superintendence  and  control  over  inferior  courts.  The  district 
court  can  now  issue  writs  of  injunction  where  by  the  established 
rul.-s  of  equity  they  would  be  awarded:  and  the  right  to  grant  t he- 
writ  carries  with  it  tire  jurisdiction  to  which  the  writ  applies  in 
chancery  courts,  and  no  more,  and  this  without  regard  to  amount/ 
It  is  held  that  the  present  constitution,  in  the  grant  of  power  to 
issue  writs  of  in  junction,  granted  to  the  district  court  all  the  equity 
powers  conferred  upon  chancery  courts  in  such  cases,  without  re- 
Lranl  to  amount;1  but  the  cases  in  which  this  view  was  announced 
were  not  cases  where  the  jurisdiction  of  inferior  tribunals  or  the 
validity  of  their  judgments  were  brought  in  question,  but  were  cases 
in  which  the  original  jurisdiction  of  the  district  court  was  invoked 
for  the  purpose  of  preventing  the  commission  of  unlawful  acts 
where  there  was  no  remedy  at  law.  AVherever,  therefore,  the  judg- 
ments and  proceedings  of  an  inferior  tribunal  are  complained  of  as 
erroneous  in  respect  to  matters  over  which  the  tribunal  l^as  the 
power  to  adjudicate,  the  error  must  be  corrected  by  the  appropriate 
remedy  of  appeal,  if  such  remedy  is  given,  and  if  not,  the  judgment 
is  final  and  conclusive.4 

The  district  court  has  no  power  to  grant  and  perpetuate  a  writ 
of  prohibition  against  proceedings  about  to  be  had  in  a  justice's 
court.5 

wsom  v.  Chrisman,  9  T.  115;  Smith  v.  Smith,  11  T.  102;  Rotzein  v.  Cox, 
63. 
•  Anderson  County  v.  Kennedy,  5S  T.  616;    Red  v.  Johnson,  53  T.  284;  Dauen- 

hau.-r  v.  D.-vin,-.  .".1  T.  480.     Set-  ?  11^.  M//*m. 

'Anderson  County  v.  Kennedy,  58  T.  016;  Alexander  v.  Holt,  59  T.  205;  Day 
v.  rharnh-rs  »>-,'  T.  191.  H0 

<  ( ;..  II.  A.  s.  A.  Hy.  Co.  v.  Dowe-flBd  T.  1.  :t. 

»Seele  v.  State,  1  Civ.  A  pp.  l'.f>  rjn  s.  \V.  R.*p.  946).  Where  a  case  appealed 
from  tin- county  to  tin- district  <  "iirt.  ami  an  original  suit  U-twi-.-n  the  same 
i^n-fiiifnt  consolidated  and  lu-anl  t'-i;-  tln-r.  th»-  district  r»urt 
htt  jurisdiction  to  make  such  order  M  tin-  r..unty  court  mi^ht  hu\.-  m  i 
well  as  to  adjii'iicat.-  t'lf  .|U.-tic.ns  at  issut-  in  tin-  Miit  originally  instituted  iu 
that  court.  V,-al  v.  Forts.-n.  oT  T 

Where  a  county  coniiuissioners'  court  orl.-rfl  a  tlnr-l-class  rcxid  to  be  changed 
into  oue  of  the  second  class,  without  complying  with  the  statutory  enactments- 


138  JURISDICTION.  [§  120. 

§  120.  Appellate  jurisdiction  of  county  courts. 

County  courts  have  appellate  jurisdiction  in  cases  civil  and  crim- 
inal of  which 'justice  courts  have  original  jurisdiction,  but  of  such 
civil  cases  only  when  the  judgment  of  the  court  appealed  from  shall 
exceed  $20,  exclusive  of  cost,  under  such  regulations  as  may  be  pre- 
scribed by  law.1  The  statute  provides  that  "  the  county  court  shall 
have  appellate  jurisdiction  in  civil  cases  over  which  the  justices' 
courts  have  original  jurisdiction,  when  the  judgment  of  the  court 
appealed  from  or  the  amount  in  controversy  shall  exceed  twenty 
dollars,  exclusive  of  costs." 2  It  also  has  power  to  hear  and  deter- 
mine cases  brought  up  from  the  justices'  courts  by  certiorari  under 
the  provisions  of  the  title  relating  thereto.3 

An  appeal  lies  from  a  justice's  court  if  the  amount  in  controversy 
is  over  $20,  though  the  judgment  may  be  foj"  less  than  $20.4  And 
•where  a  defendant  interposes  a  counter-claim  amounting  to  more 
than  $20,  and  judgment  goes  against  him,  he  may  appeal,  though 
the  amount  sued  for  by  plaintiff  is  less  than  $20.5  The  court  of 
civil  appeals  for  the  third  district  holds  that  in  damage  suits  against 
railroad  companies  the  statutory  attorney's  fee  allowed  cannot  be 
added  to  the  amount  in  controversy  to  confer  jurisdiction  on  ap- 
peal ; 6  the  court  in  the  first  district  holds  that  it  may  be  added.7 

Under  the  power  vested  in  the  legislature  to  increase,  diminish 
or  change  the  jurisdiction  of  the  county  court,  it  is  held  that  the 
statute  authorizing  an  appeal  when  the  amount  in  controversy  ex- 
ceeds $20  is  valid,  though  the  constitution  authorizes  an  appeal 
only  when  the  judgment  exceeds  that  sum.8  It  will  be  noticed  the 
constitution  reads,  "  When  the  judgment  of  the  court  appealed 

in  regard  to  establishing  public  roads  and  compensating  the  owners  of  land 
over  which  they  pass,  it  was  held:  (1)  That  the  opening  a  second-class  road  im- 
posed greater  burdens  upon  the  land  than  would  have  been  imposed  by  the  open- 
ing of  a  third-class  road.  (2)  That  such  a  taking  without  compensation  to  the 
owner  is  in  violation  of  article  I,  section  17,  of  the  constitution.  (3)  That  had 
the  county  court  proceeded  as  required  by  statute,  the  district  court  would 
have  had  no  appellate  jurisdiction  over  its  decisions;  but  if  it  proceeded  con- 
trary to  the  statutes,  the  district  court  had  jurisdiction.  Bounds  v.  Kirven, 
63  T.  159.  Under  article  4693  of  the  Revised  Statutes,  the  district  court  has  no 
appellate  jurisdiction  from  awards  of  the  county  commissioners'  court  allowing 
damages  incident  to  the  opening  of  public  roads.  Taylor  v.  Travis  County,  77  T. 
333  (14  S.  W.  Rep.  137). 

i  Const,  art.  V,  §  16. 

2R.  S.  1158,  1668. 

»R.  S.  341,  1159. 

<Brazoria  Co.  v.  Calhoun,  61  T.  223;  Smith  v.  Giles,  65  T.  341;  Grooms  v.  Atas- 
cosa  Co.,  29  S.  W.  Rep.  73;  Piedro  v.  Newman,  id.  74. 

5  Roberts  v.  McCamant.  70  T.  743  (8  S.  W.  Rep.  548). 

*G.,  C.  &  S.  F.  Ry.  Co.  v.  Farmer,  3  Civ.  App.  458  (22  S.  W.  Rep.  515). 

'  G.,  C.  &  S.  F.  Ry.  Co.  v.  Werchan.  3  Civ.  App.  478  (23  S.  W.  Rep.  30). 

*  Miman  v.  Kidman,  1  App.  C.  C.,  §§  629,  630. 


§  120.]  DISTRICT   AND   COUNTY    COURTS.  139 

from  shall  exceed  twenty  dollars,"  while  the  provision  of  the  stat- 
ute is,  "When  the  jmlyiif-nt  of  the  court  appealed  from  or  the  amount 
in  controversy  shall  exceed  twenty  dollars." 

An  unfounded  plea  in  reconvention  for  an  amount  sufficient  to 
sustain  un  appeal,  e.  </.,  a  claim  for  damages  on  the  ground  that  the- 
suit  in  which  the  plea  is  interposed  was  instituted  maliciously,  will 
not  authorize  an  appeal,  the  plaintitrs  claim  being  for  less  than  $20  ;l 
it  is  otherwise,  however,  if  the  plea  is  good.2 

The  county  court  has  no  power  to  supervise  and  control  inferior 
courts,  except  in  the  mode  prescribed,  either  by  an  appeal  or  cer- 
tiorari.* 

i  G.,  C.  &  S.  F.  Ry.  Co.  v.  Hewson,  3  App.  C.  C.,  §  248. 
2G.,  C.  &  S.  F.  Ry.  Co.  v.  Tacquard,  3  App.  C.  C,,  §  250. 
5  Carlisle  v.  Coffee,  59  T.  391. 


CHAPTER  VI. 


JURORS  — HOW  SELECTED  AND  SUMMONED. 


121.  Who  are  competent. 

122.  Jurors  disqualified  to  try  a  par- 

ticular case. 

123.  Who  are  exempt  from  jury  serv- 

ice. 

124.  Jury  commissioners;  their  quali- 

fications. 

125.  Notice  to  and  attendance  of  com- 

missioners. 

126.  Oath  of  commissioners  in  dis- 

trict court. 

127.  Oath  of  commissioners  in  county 

court. 

128.  Procedure    where    no    commis- 

sioners are  appointed  or   no 
selection  of  jurors  is  made. 

129.  Sessions  of  commissioners;  duty 

of  clerks. 


130.  Selection  of  jurors. 

131.  Drawing  of  jurors;    lists,  how 

made  out  and  delivered. 

132.  Clerk  and  deputies  to  be  sworn. 

133.  Lists  of  names  of  jurors  selected 

in  one  court  to  be  furnished 
to  the  commissioners  of  the 
other. 

134.  Lists  of  jurors  to  be  destroyed. 

135.  Selected  jurors,  how  summoned. 

136.  Sheriff  to  be    sworn  when  di- 

rected to  summon  jurors  who 
have  not  been  selected. 

137.  Jurors  excused;   fined  for  non- 

attendance. 

138.  Juries  for  the  week,  how  made 

up. 


§  121.  Who  are  competent. 

All  male  persons  over  twenty-one  years  of  age  are  competent 
jurors,  unless  disqualified  under  some  provision  of  the  statute. 

No  person  is  qualified  to  serve  as  a  juror  who  does  not  possess 
the  f ollowing  qualifications : 

1.  He  must  be  a  citizen  of  the  state  and  of  the  county  in  which 
he  is  to  serve,  and  qualified  under  the  constitution  and  laws  to  vote 
in  said  county. 

2.  He  must  be  a  freeholder  within  the  state  or  a  householder 
within  the  county. 

3.  He  must  be  of  sound  mind  and  good  moral  character. 

4.  He  must  be  able  to  read  and  write.     (This  provision  may  be 
dispensed  with  when  it  shall  be  made  to  appear  to  the  court  that 
the  requisite  number  of  jurors  able  to  read  and  write  cannot  be 
found  within  the  county.1 ) 

5.  He  must  not  have  served  as  a  juror  for  six  days  during  the 
preceding  six  months  in  the  district  court,  or  during  the  preceding 
three  months  in  the  county  court.     (The  court  may  dispense  with 
this  exception  when  the  county  is  so  sparsely  populated  as  to  make 
its  enforcement  seriously  inconvenient.1) 

1R.  S.  3140;  Const.,  art  XVI,  §  19. 


_"2.]  ji  K..KS  —  HOW  n  VM..XED.  141 

»'-.    I!--  must  not  liave  been  convicted  of  felony. 
7.   !!••  must  not  be  umler  indictment  or  other  legal  accusation  of 
theft,  or  of  any  felony.1 

In  all  suits  instituted  l.y  or  against  any  county,  the  inhabitants 
of  such  county  may  be  jurors,  if  otherwise  competent  and  qualified 
•"i-ding  to  la\. 

Although  parties  be  ignorant  of  the  fact  disqualifying  a  juror 

D  accepted,  still  if  the  fact  be  known  during  the  trial  and  they 

s  ith  the  trial  without  objection,  it  is  too  late  to  urge  the 

•tion  after  a  verdict.9     It  is  too  late  after  verdict  to  object  that 

a  juror  was  not  a  freeholder.4 

Following  decisions  of  the  court  of  appeals,  it  is  held  that  pre- 
i>y  a  juror  for  one  week  during  the  same  term  of  the 
court  at  which  he  is  again  offered  as  a  juror  is  not  a  good  ground 
of  challenge  for  cause.5 

;;'  122.  Jurors  disqualified  to  try  a  particular  case. 
The  following  persons  are  disqualified  to  serve  as  jurors  in  any 
particular  case: 

1.  Any  witness  in  the  case. 

2.  Any  person  interested  directly  or  indirectly  in  the  subject- 
matter  of  the  suit. 

3.  Any  person  related  by  consanguinity  or  affinity  within  the 
third  degree  to  either  of  the  parties  to  the  suit. 

4.  Any  person  who  has  a  bias  or  prejudice  in  favor  of  or  against 
either  of  the  parties. 

5.  Any  person  who  has  sat  as  a  petit  juror  in  a  former  trial  of 
the  same  case,  or  of  another  case  involving  the  same  questions  of 

It  was  not  the  intention  of  the  statute  to  disqualify  as  a  juror 
any  person  who  might  happen  to  be  subptunaed  in  a  case  if  he  was 
not  examined  as  a  witness.7  That  a  juror  lives  upon  the  land  in- 
volved so  as  to  be  interested  in  the  particular  suit,  or  is  related 
within  the  third  degree  to  any  of  the  parties,  is  a  sufficient  o 
tion  against  him  individually,  but  does  not  require  the  quashini:  of 
the  panel.8  That  the  sister  and  the  niece  of  a  juror  are  the  wives  of 

'  R  a  3138,  3139. 
*  R  S.  791. 

»Blanton  v.  May.-s.  7i  T.  417  (10  S.  W.  Rep.  452). 
.iistt-r  v.  LA  Londe,  57  T.  28. 
;-t«.!i  Wat.  r  u,-rks  Co.  v.  Harris,  3  Ci%  .  Rep.  46).    See 

:  App.  640:  Tut  tie  v.  Statv.  »i  A  pp.  556;  Corcia  v.  State,  5  A 
YV.-Mi  v.  Stat.-.  :;  App.  414. 
•&&814L 

7  East  Line  &  R  R  Ry.  Co.  v.  Brinker,  68  T.  500  (3  S.  W.  Rep.  99). 

8  Veramendi  v.  Hutching,  56  T.  414. 


142  JURORS HOW   SELECTED    AND    SUMMONED.  [§  122, 

two  of  the  brothers  of  a  party  to  a  suit  constitutes  no  ground  of  dis- 
qualification.1 A  juror  whose  wife's  sister  is  the  wife  of  a  plaintiff 
to  a  suit  at  the  time  of  trial  may,  in  action  by  such  plaintiff  for  the 
recovery  of  damages  for  personal  injuries,  be  challenged  for  cause. 
The  damages,  when  recovered,  would  be  community  property  of 
the  plaintiff  and  his  wife,  and  she,  though  not  a  nominal  party,, 
would  be  substantially  a  party  to  the  suit.  In  examining  a  juror 
on  his  voir  dire,  it  is  not  improper  to  ask  him  if  he  knows  anything 
about  the  facts  of  the  case  or  if  he  has  made  up  his  mind  about  the 
case.  The  examination  need  not  be  confined  to  the  literal  language 
of  the  statute,  but  may  extend  to  an  inquiry  as  to  the  bias  or  preju- 
dice relating  to  the  subject-matter  of  the  litigation  as  well  as  to 
that  which  may  be  felt  toward  the  parties  personally.  A  refusal  to 
allow  such  examination  touching  the  qualification  of  a  juror  affords 
cause  for  reversal.2 

Parties  should  be  allowed  full  opportunity  to  ascertain  the  real 
state  of  feeling  existing  between  proposed  jurors  and  the  respective 
litigants,  both  to  guide  them  in  making  their  peremptory  challenges, 
and  also  to  enable  the  court  to  decide  as  to  whether  or  not  the  bias 
or  prejudice  which  disqualifies  exists.  Impertinent  questions,  the 
answers  to  which  will  not  materially  aid  in  these  objects,  should  be 
excluded,  j^o  rule  applicable  to  all  cases  can  be  prescribed  as  to 
the  extent  to  which  the  inquiry  should  be  allowed.3 

1  Johnson  v.  Richardson,  52  T.  481. 

2H.  &  T.  C.  Ry.  Co.  v.  Terrell,  69  T.  650  (7  S.  W.  Rep.  670).  Reference  is  made 
in  this  case  to  article  3208,  Revised  Statutes,  which  provides  that  "  a  challenge 
for  cause  is  an  objection  made  to  a  particular  juror,  alleging  some  fact  which 
under  the  provision  of  the  first  chapter  of  this  title  disqualifies  him  to  serve  as 
juror  in  any  case,  or  in  that  particular  case,  or  which,  in  the  opinion  of  the  court, 
renders  him  an  unfit  person  to  sit  on  the  jury."  See  State  v.  Mann,  83  Mo.  589; 
Willis  v.  State,  12  Ga.  444;  Pierce  v.  State,  13  N.  H.  536;  Hiatt  v.  Insuranc?  Co., 
2  Dill.  572. 

In  the  trial  of  a  suit  for  the  breach  of  the  conditions  of  a  liquor-dealer's  bond, 
it  is  not  a  cause  of  challenge  to  a  juror  that  he  lias  a  bias  in  favor  of,  or  a  prej- 
udice against,  the  business  or  occupation  of  selling  liquors  at  retail,  and  it  is 
not  error  to  refuse  to  permit  the  jurors  to  be  questioned  as  to  such  bias  or  prej- 
dice.  Grady  v.  Rogan,  2  App.  C.  C.,  §  263.  That  a  juror  had  been  in  the  em- 
ploy of  the  plaintiff  about  a  year  before  the  trial  will  not  authorize  the  presump- 
tion that  he  is  biased  in  favor  of  the  plaintiff.  E.  L.  &  R.  R.  Ry.  Co.  v.  Brinker, 
68  T.  500  (3  S.  W.  Rep.  99). 

3  It  is  held  in  this  case  that  in  an  action  against  a  bank  it  would  not  be  im- 
proper to  permit  plaintiff  to  ask  a  juror  on  his  voir  dire  whether  he  is  indebted 
to  the  bank.  Davis  v.  Panhandle  Nat.  Bank,  29  S.  W.  Rep.  926.  Where  a  ten- 
ant is  joined  as  a  defendant  in  trespass  to  try  title  and  disclaims,  but  still  has 
an  interest  in  the  improvements,  which  the  other  parties  have  agreed  to  pay  in 
case  of  success,  he  is  a  party  in  interest  to  the  suit,  and  his  brother  is  incompe- 
tent to  sit  as  a  juror,  Davidson  v.  Wallingford,  30  S.  W.  Rep.  286.  In  examin- 
ing jurors  on  their  voir  dire,  parties  have  the  right  to  ask  them  if  they  are 
members  of  the  order  of  Knights  of  Pythias  or  Odd  Fellows;  but  an  error  in 
prohibiting  such  an  inquiry  is  harmless  where  no  injury  is  shown  to  have  re- 


:  '.    ll'4.J       JLKORS  —  II  FED   AND   8UMMu>  143 

A  party  failing  to  make  any  effort  to  ascertain  whether  jurors 
tendered  are  impartial  cannot  on  motion  for  new  trial  complain  on 
that  ground.1 

23.  Who  are  exempt. 

All  competent  jurors  are  liable  to  jury  service,  except  the  follow- 
ing persons: 

1.  All  persons  over  sixty  years  of  age. 

2.  All  civil  officers  of  this  state  and  of  the  United  States. 

3.  All  overseers  of  roads. 

4.  All  ministers  of  the  gospel  engaged  in  the  active  discharge  of 
their  ministerial  duties. 

5.  All  physicians  and  attorneys  engaged  in  actual  practice. 

6.  All  publishers  of  newspapers,  school-masters,  druggists,  under- 
takers, telegraph  operators,  railroad  station  agents,  ferrymen,  and 
all  millers  engaged  in  grist,  flouring  and  saw  mills. 

7.  All  presidents,  vice-presidents,  conductors  and  engineers  of  rail- 
Toad  companies  when  engaged  in  the  regular  and  actual  discharge 
of  the  duties  of  their  respective  positions. 

8.  Any  person  who  has  acted  as  jury  commissioner  within  the 
preceding  twelve  months. 

9.  All  members  of  the  volunteer  guards  of  this  state  under  the 
provisions  of  the  title  "  Militia."     (Revised  Statutes,  3459 

10.  In  cities  and  towns  having  a  population  of  fifteen  hundred  or 
more  inhabitants,  according  to  the  preceding  United  States  census, 
the  active  members  of  organized  fire  companies,  not  to  exceed 
twenty  to  each  one  thousand  of  such  inhabitants.     If  there  be  more 
than  one  organized  fire  company  in  a  town  or  city,  the  exemptions 
shall  be  equally  divided  between  them.     The  members  to  be  ex- 
empted must  be  selected  by  their  companies,  and  their  names  must 
!»'  handed  to  the  clerks  of  the  district  and  county  courts  respect- 
ively, l»y  the  chief  of  the  fire  department,  and  if  there  be  no  such 
<>Hicer,  then  by  the  foreman  of  the  company.2 

Notaries  public  are  not  exempted  by  the  law  authorizing  their 
appointment.1 

124.  Jury  commissioners;  their  qualifications. 

The  district  court  of  each  county,  at  each  term  thereof,  is  iv<|iiiivil 
to  appoint  three  persons  to  perform  the  duties  of  jury  comini- 
ers.     The  county  court  at  its  first  term  after  the  81|  >f  De- 

suited  to  the  party  complaining.     Burgess  v.  Singer  Mfg.  Co.,  80  S.  W.  Rep. 
1110. 

1  Blanton  v.  Hayes,  72  T.  417  (10  S.  W.  Rep.  452);  Rector  v.  Hudson 
McGehee  %  '  T.  20;  Boetge  v.  Landa,  22  T.  lOo;  Tweedy  v.  Briggs,  31  T.  7  J. 

*R,  S.  3142-3144. 

»  R.  &  3003. 


144  JUKORS  —  HOW    SELECTED   AND    SUMMONED.       [§§  125,  126. 

cenibcr  and  the  30th  {lay  of  June  appoints  a  like  number  to  perform 
the  duties  of  jury  commissioners  for  that  court.1  The  qualifications 
of  jury  commissioners  are  as  follows: 

1.  They  shall  be  intelligent  citizens  of  the  county,  and  able  to 
read  and  write. 

2.  They  shall  be  qualified  jurors  and  freeholders  of  the  county. 

3.  They  shall  be  residents  of  different  portions  of  the  county. 

4.  They  shall  have  no  suit  in  the  court  which  requires  the  inter- 
vention of  a  jury. 

The  same  person  shall  not  act  as  jury  commissioner  more  than 
once  in  the  same  year.2 

The  district  court  has  power  to  appoint  jury  commissioners  at 
any  time  to  supply  jurors  necessary  to  the  trial  of  causes  before  it. 
But  the  more  regular  mode  would  be  to  reconvene  the  jury  com- 
missioners for  the  term  than  to  appoint  a  new  commission.3 

§  125.  Notice  to  and  attendance  of  commissioners. 

The  court  must  cause  the  persons  appointed  as  jury  commission- 
ers to  be  notified  by  the  sheriff  or  any  constable  of  their  appoint- 
ment, and  of  the  time  and  place  when  and  where  they  are  to  ap- 
pear before  the  court.  If  any  person  appointed  a  jury  commissioner 
fail  or  refuse  to  attend  and  perform  the  duties  required  without  a 
reasonable  excuse,  he  may  be  fined  by  the  court  in  any  sum  not 
less  than  $25  nor  more  than  $100.4 

§  126.  Oath  of  commissioners  in  district  court. 

"When  the  persons  appointed  appear  before  the  court,  the  judge 
must  administer  to  them  the  following  oath :  "  You  do  swear  faith- 
fully to  discharge  the  duties  required  of  you  as  jury  commissioners; 
that  you  will  not  knowingly  elect  any  man  as  a  juryman  whom 
you  believe  to  be  unfit  and  not  qualified;  that  you  will  not  make 
known  to  any  one  the  name  of  any  juryman  selected  by  you  and 

i  R.  S.  3145,  3155. 
2R.  S.  3145,3146. 

3  Roundtree  v.  Gilroy,  57  T.  176.    The  jurors  for  the  term  of  the  court  at  which 
this  cause  was  tried  were  selected  for  the  second  and  third  weeks  of  the  term, 
at  the  beginning  of  the  term,  by  jury  commissioners  then  appointed  instead  of 
at  the  preceding  term.     The  court  continuing  in  session  longer  than  three 
weeks,  the  judge  appointed  other  commissioners,  who  selected  jurors  for  the 
remainder  of  the  term.     The  proper  proceeding  would  have  been  to  reconvene 
the  commissioners  at  first  adopted,  but  the  method  adopted  was  held  to  be  at 
most  only  an  irregularity. 

The  fact  that  the  father  of  a  jury  commissioner  is  or  has  been  a  party  to  the 
suit,  or  that  the  commissioner  is  a  merchant  doing  business  in  the  vicinity  of 
the  land  in  litigation,  and  several  of  the  defendants  trade  with  him,  are  neither 
of  them  objections  which  disqualify  a  commissioner  or  good  ground  for  quash- 
ing the  panel  of  petit  jurors.  Veramendi  v.  Hutchins,  56  T.  414. 

4  R.  S.  3147,  3148. 


7.    128  ..    ..-  —  HOW    SELECTED    AND    S!  MM"NED.  14." 

lie  court;  that  you  \vill  not,  directly  or  indirectly,  con- 
\vith  ;uiy  one  selected  by  you  as  a  juryman  concerning  the 
merits  of  any  case  to  be  tried  at  the  next  term  of  this  court  until 
after  said  cause  may  be  tried  or  continued,  or  the  jury  disc; 

§  127.  Oath  of  commissioners  in  county  court. 

-  Y«>u  do  solemnly  swear  faithfully  to  discharge  the  duties  re- 
quired of  \""ii  ;i>  jury  commissioners;  that  you  will  not  knowing!  v 
«-lrrt  any  man  as  a  juryman  whom  you  believe  to  be  unfit  and  not 
qualified:  that  yon  will  not  make  known  to  any  one  the  name  of 
any  juryman  selected  by  you  and  reported  to  the  court;  that 
will  not,  directly  or  indirectly,  communicate  with  any  one  selected 
by  you  as  a  juryman  concerning  the  merits  of  any  case  to  be  tried 
by  this  court  within  the  next  six  months,  until  said  case  shall  have 
been  tried  or  otherwise  disposed  of."  2 

g  128.  Procedure  where  no  commissioners  are  appointed  or  no  se- 
lection of  jurors  is  made,  etc. 

If  from  any  cause  jury  commissioners  are  not  appointed  at  the 
time  prescribed,  or  fail  to  select  jurors  as  required,  or  if  the  panels 
selected  be  set  aside,  or  the  jury  lists  returned  into  court  be  lost  or 
destroyed,  the  court  is  required  forthwith  to  proceed  to  supply  a 
sufficient  number  of  jurors  for  the  term  under  the  provisions  of  the 
statute,  and  may,  when  it  may  be  deemed  necessary,  appoint  com- 
:<>ners  for  that  purpose.1 

By  the  terms  of  this  article  it  is  held  that  the  court  may  admin- 
ister the  statutory  oath  to  the  sheriff  and  instruct  him  to  summon 
a  jury,  if,  from  any  cause,  a  jury  has  not  been  obtained  through  the 
jury  commissioners.4  This  is  contrary  to  the  rule  laid  down  in 
Daniel  v.  Bridges,  73  T.  149.  It  is  there  said  that  if,  from  any 
cause,  a  sufficient  number  of  jurors  drawn  by  the  commissioners  are 
not  in  attendance,  or  the  panels  are  reduced  below  a  number  ade- 
quate to  the  demands  of  the  docket,  the  sheriff  may  be  directed, 
after  the  proper  oath  is  administered  to  him,  to  supply  the  defi- 
ciency; but  that  the  law  invests  no  court  with  the  power  to  order 
the  sheriff  to  summon  a  venire  for  the  trial  of  a  civil  cause.  It  will 
be  noticed,  however,  that  the  court,  in  arriving  at  this  result,  mis- 
quotes the  above  article  of  the  statute.  And  this  fact,  it  seems, 
led  to  the  erroneous  ruling  in  the  former  opinion  in  Smith  v.  Bates, 
as  reported  in  27  S.  W.  Rep. 

IRS.  3149. 


1  R  S.  3150.  A  form  of  oath  is  prescribed  by  statute  where  the  sheriff  is  di- 
rected to  summon  jurors  who  hare  not  been  selected  by  commissioners.  R  S. 
8184  See  infra,  §  10a 

«  Smith  v.  Bates,  88  S.  W.  Rejx  64 
10 


146  JURORS HOW    SELECTED    AXD    SUMMONED.       [§§  129-131. 

£  129.  Sessions  of  commissioners;  duty  of  clerks. 

When  the  jury  commissioners  have  been  sworn  and  organized, 
the  judge  must  instruct  them  as  to  their  duties  and  designate  to 
them  for  what  weeks  they  shall  select  petit  jurors,  and  the  number 
of  jurors  to  be  selected  for  each  week.  The  commissioners  must 
retire  in  charge  of  the  sheriff  or  constable  to  some  suitable  apart- 
ment, and  be  kept  free  from  the  intrusion  of  any  person  during 
their  session,  and  must  not  separate,  without  leave  of  the  court,  until 
they  have  completed  the  duties  required  of  them. 

It  is  the  duty  of  the  clerk  to  furnish  the  jury  commissioners  with 
all  necessary  stationery,  and  also  with  a  list  of  names  of  all  persons 
appearing  from  the  records  of  the  court  to  be  exempt  or  disqualified 
from  serving  on  the  petit  jury  at  each  term.  He  must  also  deliver 
to  them  the  envelope  mentioned  in  article  3171  of  the  Revised  Stat- 
utes l  and  take  their  receipt  therefor,  showing  whether  or  not  such 
seal  remained  unbroken.  It  is  the  duty  of  the  county  clerk,  or  other 
legal  custodian  of  the  same,  to  furnish  the  jury  commissioners  with 
the  last  assessment  roll  of  the  county.2 

§  130.  Selection  of  jurors. 

It  is  the  duty  of  the  jury  commissioners  to  select  from  the  citi- 
zens of  the  different  portions  of  the  county,  liable  to  serve  as 
jurors,  one  hundred  persons,  or  a  greater  or  less  number  if  so  di- 
rected by  the  court,  free  from  all  legal  exceptions,  of  good  moral 
character,  of  sound  judgment,  well  informed,  and,  so  far  as  prac- 
ticable, able  to  read  and  write,3  to  serve  as  petit  jurors  at  the  next 
term  if  in  the  district  court,  and  for  the  next  six  months  if  in  the 
county  court,  and  write  the  names  of  such  persons  on  separate 
pieces  of  paper,  as  near  the  same  size  and  appearance  as  may  be, 
and  fold  the  papers  so  that  the  names  cannot  be  seen.4 

The  commissioners  for  the  county  court  select  jurors  for  all  the 
terms  of  the  county  court  to  be  held  within  six  months  next  after 
the  adjournment  of  the  first  term  of  the  court  after  the  31st  day  of 
December  and  the  30th  day  of  June  of  each  year,  and  the  county 
judge  must  designate  the  number  of  jurors  to  be  selected  for  each 
term  and  week.8 

§  131.  Drawing  of  jurors;  lists,  how  made  out  and  delivered. 
The  names  of  the  persons  selected,  written  and  folded  as  directed 
in  the  preceding  section,  are  deposited  in  a  box,  and,  after  being 

1  See  §  133,  infra. 

2R  S.  3151-3154. 

8  This  provision  may  be  dispensed  with  when  the  requisite  number  of  jurors 
able  to  read  and  write  cannot  be  found  within  the  county.  R.  S.  3UO.  See 
§  121,  supra. 

*  R.  S.  3158. 

5R.S.  3157. 


AM>  >IMM<>NKI>.  H7 

well  shaken  and  mixed,  the  OOQimiflBIOllCftl  draw  therefrom  the 
name-,,  one  hy  one,  of  thirty-six  persons,  or  a  irreater  or  le>s 
number  win-re  the  judge  has  so  direi-letl,  for  each  week  of  the  term 
of  the  district  court,  or  terms  of  the  county  court  for  which  a  jury 
may  be  re(|iiired,  and  record  such  names  as  they  are  drawn  upon  as 
many  separate  >heets  of  paper  as  there  are  weeks  of  such  terra  or 

UB  for  which  juries  are  required.  The  several  lists  of  naim  s 
drawn  must  he  certified  under  the  hands  of  the  commissioners  to  he 
the  lists  drawn  by  them  for  said  several  weeks,  and  must  be  sealed 
up  in  separate  envelopes,  indorsed,  "List  of  petit  jurors  for  the 

>  of  the  -     -  term  of  the  -  court  of  -    -  count" 


///.  M'iiik#\.     The  commissioners  write  their  names  across  the  seals 
of  the  envelopes  and  deliver  them  to  the  judge. 

The  judge  delivers  the  envelopes  to  the  clerk  or  to  one  of  his  dcp- 
in  open  court,  and  the  court  may  instruct  the  clerk  to  indorse 
on  any  of  such  envelopes  that  the  jury  for  that  week  shall  be  sum- 
moned for  some  other  day  than  Monday  of  said  week.1 

i  132.  Clerk  and  deputies  to  be  sworn. 

The  judge,  at  the  time  of  delivering  to  the  clerk  the  envelopes 
containing  the  lists  of  jurors,  as  directed  in  the  preceding  section, 
must  administer  to  the  clerk  and  each  of  his  deputies  {in  oath,  in 
substance  as  follows:  "You  do  solemnly  swear  that  you  will  not 
open  the  jury  lists  now  delivered  to  you,  nor  permit  them  to  be 
opened  until  the  time  prescribed  bylaw;  that  you  will  not  directly 
nor  indirectly  converse  or  communicate  with  any  one  selected 
juror  concerning  any  case  pending  for  trial  in  this  court  at  its  next 
term,"  if  in  the  district  court;  or  if  in  the  county  court,  "within  the 
next  six  months."  If  for  any  reason  such  oath  should  not  be  ad- 
ministered to  any  of  the  deputies,  or  should  the  clerk  subsequently 
appoint  a  deputy,  the  clerk  must  administer  to  such  deputy  a  like 
oath.2 

§  133.  List  of  names  of  jurors  selected  in  one  court  to  be  furnished 
to  commissioners  of  the  other. 

In  order  to  prevent  a  conflict  in  the  selection  of  jurors  in  the  dis- 

trict and  county  courts,  the  jury  commissioners  of  each  court  are 

required  to  make  a  list  of  the  names  of  the  grand  and  petit  jurors 

•ed   by  them,  for  the  use  of  the  commissioners  of  the  other 

court.     This  list  is  placed  by  the  commissioners  in  an  envelope  and 

sealed  up:  the  commissioners  write  their  names  across  the  seal,  ad- 

-  the  envelope  to  the  commissioners  of  the  other  proper  court, 

and  deliver  it  to  the  judge  of  the  court  in  which  they  are  aetim:,  in 

open  court.     It  is  the  duty  of  the  judge  without  delay  to  deliver 

>IJ.  S.  :{  l.V.i-:;  ]»;•_'. 


148  JURORS  —  HOW   SELECTED   AND   SUMMONED.      [§§  134,  135. 

the  envelope  to  the  clerk  of  the  other  court  or  one  of  his  deputies, 
and  at  the  time  of  delivery  to  administer  to  said  clerk  or  deputy,  as 
the  case  may  be,  the  following  oath :  "  You  do  solemnly  swear  that 
you  will,  to  the  best  of  your  ability,  safely  keep  this  envelope ;  and 
that  you  will  neither  open  the  same  nor  allow  it  to  be  opened,  ex- 
cept as  provided  by  law ;  and  that  you  will  cause  it  to  be  delivered 
to  the  jury  commissioners  of  the  county  court  next  hereafter  ap- 
pointed in  and  for  this  county."  At  the  first  term  of  the  court 
thereafter  held,  at  which  jury  commissioners  are  appointed,  it  is  the 
duty  of  the  clerk  to  deliver  said  envelope  to  the  jury  commissioners. 
or  one  of  them,  and  take  a  receipt  therefor.  The  receipt  must  state 
whether  the  seal  of  the  envelope  be  broken  or  not.  After  the  jury 
commissioners  have  assembled  for  business,  they  must  open  the  en- 
velope and  read  the  list  of  names,  and  no  person  named  on  the  list 
shall  be  selected  as  a  juror  by  such  commissioners.1 

§  134.  Lists  of  jurors  to  be  destroyed. 

It  is  the  duty  of  the  jury  commissioners,  in  both  the  district  and 
county  courts,  before  leaving  the  apartment  in  which  they  have 
selected  jurors,  to  destroy  the  list  of  names  mentioned  in  the  pre- 
ceding section ;  and  it  is  unlawful  for  them  or  any  of  them  to  make 
known  to  any  person  the  name  of  any  person  on  such  lists.2 

§  135.  Selected  jurors,  how  summoned. 

Within  not  more  than  thirty  days  and  not  less  than  ten  days 
prior  to  each  term  of  the  court,  it  is  the  duty  of  the  clerk  of  the 
district  or  county  court  to  open  the  lists  of  jurors  selected  for  such 
term,  and  to  make  out  a  copy  of  the  same,  duly  certified  under  his 
hand  and  the  seal  of  his  office,  and  deliver  the  same  to  the  sheriff. 
Where  the  judge  has  directed  that  the  jurors  for  any  week  shall  be 
summoned  for  some  other  day  than  Monday,  the  clerk  must  note 
such  order  for  the  information  of  the  sheriff.  On  receipt  of  such 
lists  it  shall  be  the  duty  of  the  sheriff  immediately  to  notify  the 
several  persons  named  in  such  lists  to  be  in  attendance  on  the  court 
on  the  day  and  week  for  which  they  were  respectively  drawn  to 
serve  as  jurors  for  said  week.  Such  notice  may  be  orally  delivered 
by  the  sheriff  to  the  juror  in  person,  or  in  case  such  juror  cannot 
be  found,  then  a  written  memorandum  thereof,  signed  by  the  sher- 
iff officially,  may  be  left  at  the  juror's  place  of  residence,  with  some 
member  of  his  family  over  sixteen  years  of  age.  Such  notice  must 
be  served  at  least  three  days  prior  to  the  first  day  of  the  term  of 
the  court,  exclusive  of  the  day  of  service.  The  sheriff  executing 
such  summons  must  return  the  lists  on  the  first  day  of  the  term  of 
the  court  at  which  such  jurors  are  to  serve,  with  a  certificate 

i  R  S.  3165-3172. 
2R  S.  3173. 


••'-.    l:J7.]       Jl-KoK-s  —  H  .  TKU    AND    SfMMo.  149 

thereon  <>f  the  date  and  manner  of  service  upon  each  juror;  anil  if 
any  of  the  jurors  have  not  been  summoned,  ho  must  also  stato  the 
diligence  used  to  summon  them.  and  tin*  reason  why  they  have  not 
summoned.1  .Juries  for  any  special  term  of  the  district  court 
are  summoned  in  accordance  with  the  law  regulating  juries  at  reg- 
ular  tenns.J 

£  136.  Sheriff  to  be  sworn  when  directed  to  summon  jurors  who  have 
not  been  selected. 

Whenever  it  may  be  necessary  to  summon  jurors  who  have  not. 

I  »y  jury  commissioners  under  the  provisions  of  the 
ute.  the  court  must  administer  to  the  sheriff  and  each  of  his  depu- 
ties the  following  oath:  "  You  do  solemnly  swear  that  you  will,  to 
the  best  of  your  skill  and  ability,  and  without  bias  or  favor  toward 
any  )  >arty,  summon  such  jurors  as  may  be  ordered  by  the  court; 
that  you  will  select  none  but  impartial,  sensible  and  sober  men, 
havinir  the  qualifications  of  jurors  under  the  law;  that  you  will  not, 
directly  or  indirectly,  converse  or  communicate  with  any  juryman 
touching  any  case  pending  for  trial;  and  that  you  will  not  by  any 
means  attempt  to  influence,  advise  or  control  any  juryman  in  his 
opinion  in  any  case  which  may  be  tried  by  him,  so  help  you  God.va 

It  is  a  >iillicient  compliance  with  the  statute,  if  the  oath  prescribed 
be  once  administered  to  the  sheriff  during  the  term  and  before  the 
jurors  are  called  as  talesmen,  provided  the  attention  of  the  sheriff 
be  called  to  his  duty  in  selecting  the  jurors  before  they  are  sum- 
moned.4 

8  137.  Jurors  excused;  fined  for  non-attendance. 

The  court  may  hear  any  reasonable  excuse  of  a  juror,  supported 
by  oath  or  atlirmation,  and  may  either  release  him  entirely  or  until 
some  other  day  of  the  term.  Should  any  juror  who  has  been  law- 
fully notified  fail  to  be  in  attendance  on  the  court  in  obedience  to 
such  notice,  without  some  reasonable  excuse,  to  be  judged  of  by  the 
court,  be  may  be  fined  in  any  sum  not  less  than  ten  nor  more  than 
.undred  doll; 

1  It  S.  :n  74-3178.    It  is  provided  that  all  jurors  shall  be  summoned  to  appear 
on  the  day  of  the  terra  designated  by  a  standing  order  of  the  court  for  tli 
of  jury  oases.    R  a  1289,  :5  !'.»:». 

->.  11  IN.   Tli*-  jury  commissioners,  at  the  regular  terra  of  the  court  at  which 
til--  order  for  a  special  term  is  entered,  shall.  under  the  in.struction  of  tin-  court. 
;i  regular  venire  for  each  week  of  such  apt-rial  t>-nn.  which  shall  In-  «1<  n.- 
in  accordance  with  the  law  regulating  juries  for  any  regular  term  of  court 
vide.  I.  that  nothing  herein  shall  l»-  so  construed  a-  to  uit.-rfcrf  with  the  select- 
:  juries  at  one  regular  term  of  the  court  for  the  next  regular  U-rm  of  the 
c..urt.     K.  S.  1117. 


nton  v.  M  I.  417  (10  S.  W.  Rep. 

4  R  S.  aiN.').  ;jl^.i.    After  a  jury  was  regularly  ia>i>a:ifU-d  two  of  them  presented 


150  JURORS  —  HOW   SELECTED   AND    SUMMONED.  [§  138. 

§  138.  Juries  for  the  week,  how  made  up. 

( >n  Monday  of  each  week  of  the  court  for  which  a  jury  shall  be 
summoned,  and  for  which  there  may  be  jury  trials,  or  where  the 
jurv  trials  for  the  week  have  been  set  for  some  other  day,  then  on 
such  day,  the  court  shall  select  thirty  qualified  jurors,  or  a  greater 
or  less  number,  in  its  discretion,  to  serve  as  jurors  for  the  week. 
Should  such  selection  from  any  cause  not  be  made  on  the  day  ap- 
pointed, it  may  be  made  on  any  subsequent  day.  The  jurors  are 
selected  from  the  names  included  in  the  jury  list  for  the  week,  if 
there  be  the  requisite  number  of  such  in  attendance  who  are  not 
excused  by  the  court.  If  the  requisite  number  of  jurors  be  not  in 
attendance  at  any  time,  the  court  may  direct  the  sheriff  to  summon 
a  sufficient  number  of  qualified  persons  to  make  up  the  requisite 
number  of  jurors.  The  court  may  adjourn  the  whole  number  of 
jurors  for  the  week,  or  any  part  thereof,  to  any  subsequent  day  of 
the  term,  but  jurors  shall  not  be  paid  for  the  time  they  may  so 
stand  adjourned.1 

Though  article  3181  provides  that  jurors  for  the  week  shall  be 
selected  from  the  names  included  in  the  jury  list  for  the  week,  yet 
from  the  terms  of  article  3183  it  is  held  that  the  court  has  power 
to  dismiss  a  jury  selected  for  any  week  of  a  term  until  another 
week  or  further  day  of  the  term,  for  service;  that  is,  that  a  jury 
that  has  been  selected  and  has  served  for  a  week,  or  a  part  of  a 
week,  may  be  adjourned  and  required  to  appear  for  sorvice  for  the 
next  week.2 

physicians'  certificates  as  to  their  inability  to  sit,  and  were  personally  examined 
by  the  court  and  discharged.  There  was  no  error  in  this.  It  is  held,  also,  that 
there  was  no  error  in  the  court's  acting  upon  information  conveyed  by  a  tele- 
gram, sent  by  a  person  supposed  to  be  known  to  the  judge,  to  the  effect  that  a 
juror  was  ill  and  unable  to  attend  —  especially  where  there  was  no  effort  made 
to  show  that  the  juror  was  not  ill.  Houston  City  St.  Ry.  Co.  v.  Ross,  28  S.  W. 
Rep.  254 

1  R.  S.  3179-3183.    After  the  regular  jury  selected  by  the  jury  commissioners 
for  the  week  has  been  discharged,  it  is  error  to  order  a  jury,  to  be  summoned 
I iv  t  lie  sheriff,  for  the  trial  of  a  particular  case.    Lewis  v.  Merchant,  4  App.  C.  C., 
§115. 

2  Howard  Oil  Co.  v.  Davis,  76  T.  630  (13  S.  W.  Rep.  665). 


CHAPTER  YIL 


PARTIES  TO  ACTIONS.* 


139. 

141. 

1  1'-?. 
1  1-!. 
114. 

14"). 
143. 

147. 

148. 

149. 
150, 


1  .">•.'. 
153. 
1">4. 
155. 

156. 

1")7. 
158. 

160. 
161. 

it;-.'. 
!">:'.. 
164. 


In  general. 

essary   and  proper   parties, 

plaintiffs  and  defendants. 
It-iil  [xirty  in  interest  may  sue. 
Trustee  and  beneficiary. 
Suit  by  one  for  use-  of  another. 
Suit  I  iv  one  for  benefit  of  him- 

self and  others. 
Suits  by  agents. 
Suits  by  assignees,  generally. 
Assignees  of  commercial  paper 

may  sue. 
Suits  by  or   against   counties, 

cities,  etc. 

Corporations  may  sue. 
Joinder  of  plaintiffs  or  defend- 

ants having  separate  and  dis- 

tinct interests. 
Joint  owners. 

Joinder  of  several  obligors, 
Parties  conditionally  liable. 
Husband  and  wife;  actions  by. 
Husltand     and     wife;     actions 

against. 
Surviving  husband  or  wife  and 

hfi: 

Suits  by  executors,  etc, 
Suits  for  land  against  decedents. 
Survivor  and  representative. 
Hi  ir-:  >uits  by  and  against. 
Foreign  administrator. 
I'.uf:  i-s;  actions  by  and  against 
Surviving  partners. 
-  Suits  on  official  and  other  bonds; 


168.  Trial  of  right  of  property. 

169.  Parties  to  scire  facias  to  reviv 

judgment. 

170.  Judgments,  setting  aside  and  en- 

joining. 

171.  Actions  against  carriers. 

172.  Actions  against  telegraph  com- 

panies. 

173.  Tenants  in  common. 

174.  Fraudulent   conveyances;    par- 

ties to  suits  to  set  a 

175.  Matulamiis  proceedings. 

176.  Perpetuating  testimony. 

177.  Various  interests  in  land. 

178.  Lien-holders  and  incuinbrancers. 

179.  Mortgages,  parties  to   suits  to 

foreclose,  etc. 

180.  Parties  in  actions  to  foreclose 

the  vendor's  lien. 

181.  Laborers'  and  mechanics'  liens. 
185.  Subsequent  purchasers. 

183.  Purchasers  penden t e  lite. 

184.  Action  to  quiet  title  against  a 

non-resident,  unknown  or  tran- 
sient person. 

185.  Partition;  parties  to  suits  for. 

186.  Joint  trespassers. 

187.  Trespass  on  land ;  who  may  sue. 
1*>.  Wrongful  attachment 

189.  Nuisances;  injuries  to  land. 

190.  Injuries  resulting  in  death. 

191.  Parties  may  appear  in  person  or 

by  attorney. 
193.  Attorney  for  absent  defendants. 

193.  Guardians  ad  /item. 

194.  Minor  may  sue  by  next  friend. 

195.  Additional  pa: 

196.  Parties   to   condemnation    pro- 

ceedings. 


165.  Parties  to  suits  on  official  bonds. 

166.  Parties  to  indemnifying  bonds 

may  be  made  parties  to  suits 
against  the  officers. 

167.  Judicial  sales;  setting  a 

•See.  al-".  T--\.i>  I'l.  ,-t  iin-  .  1*93).  p.  395.    A-  to  rights  of  aliens  and  alien  enemies, 
see  Tex;is  Heading.  I.     As  to  effect  of  non-joinder  and  misjoinder,  and 

how  pleaded.  B  i  H. 


152  PARTIES   TO  ACTIONS.  [§  139. 

...  l 

£  139.  In  general. 

The  words  /turfy  and  parties,  when  used  in  connection  with  suits 
or  actions,  are  technical  words,  the  meaning  of  which  is  as  certainly 
fixed  as  thiii  of  any  \vords  in  the  language.  They  mean  the  person 
or  persons  l>v  or  against  whom  a  suit  is  brought,  whether  at  law  or 
in  equitv.  All  others  who  may  be  affected  by  the  suit  indirectly 
or  consequentially  are  persons  interested,  but  not  parties.1  A  judg- 
ment cannot  be  rendered  for  or  against  parties  not  named  in  the 
pleadings  nor  served  with  process,  and  who  have  made  no  appear- 
ance in  the  suit.  Recitals  in  a  judgment  entry  of  matters  affecting 
persons  not  appearing  in  the  suit  nor  made  parties  by  citation  therein 
do  not  form  a  basis  for  rendering  a  judgment  against  such  persons.2 

Before  judgment  is  rendered  against  a  debtor,  he  is  entitled  to 
have  before  the  court  as  plaintiffs  all  parties  who  have  an  interest 
in  the  debt,  that  he  may  be  freed  from  further  liability  thereon. 
So  it  is  held  that  one  insured  against  loss  by  fire  cannot  maintain 
a  suit  in  his  own  name  and  right  on  the  policy,  where  it  appears 
that  he  had  assigned  the  policy  after  the  loss  and  before  suit.  The 
general  rule  is,  that  the  legal  and  beneficial  owner  of  a  demand  is 
the  proper  person  to  sue  upon  it,  but  suits  have  been  sustained  when 
they  were  brought  by  the  person  holding  the  legal  title,  even  though 
the  beneficial  ownership  was  in  another,  and  this  even  though  the 
holder  of  the  legal  title  did  not  sue  expressly  for  the  use  of  the 
other.  In  such  cases  a  judgment  against  or  in  favor  of  the  person 
holding  the  legal  title,  in  the  absence  of  fraud,  would  be  binding 
on  parties  in  interest;  for  permitting  the  apparent  power  to  sue, 
\vhich  follows  the  legal  title,  to  remain  in  one  who  has  parted  with 
the  beneficial  interest,  is  to  be  taken  as  giving  to  such  person  the 
power  to  bind  all  persons  interested  by  an  action  brought  to  en- 
force the  claim  prosecuted  in  good  faith.  But  under  the  laws  of 
this  state,  the  assignment  of  a  policy,  after  loss,  passes  the  legal 
title  to  it,  and  clothes  the  assignee  with  the  sole  power  to  sue  upon 
it,  being  bound  to  allow  every  discount  and  defense  which  it  would 
have  been  subject  to  in  the  hands  of  the  previous  owner  before  no- 
tice of  the  assignment  was  given  to  the  defendant.3 

All  parties  in  interest,  to  be  in  any  way  affected  by  the  decree 
sought,  ought  to  be  made  parties,  if  known,  either  as  plaintiffs  or 
defendants; 4  and  each  party  so  joined  may  set  up  his  own  interest 
in  opposition  to  the  others,  and  claim  a  decree.5 

i  Winston  v.  Masterson,  87  T.  200  (27  S.  W.  Rep.  768). 

-  Williams  v.  Barnwell,  78  T.  326  (14  S.  W.  Rep.  784);  Bell  v.  Vanzandt,  54  T. 
150. 

»East  Tex.  Fire  Ins.  Co.  v.  Coffee,  61  T.  287;  R  S.  308,  309. 

«Denisun  v.  League,  16  T.  399;  Connell  v.  Chandler.  11  T.  249;  Hall  v.  Hall,  11 
T.  526;  Bailey  v.  Morgan,  13  T.  342;  Allison  v.  Shilling,  27  T.  450. 

»Legg  v.  McNeil,  2  T.  428;  Iglehart  v.  Moore,  21  T.  501;  Garrett  v.  Gaines,  8 
T.  485. 


§  140.]  PARTIES   TO   ACTI' 

It  is  a  general  rule  in  equity,  subject  to  but  few  exceptions,  that 
all  persons  interested  in  the  subject-matter  of  the  suit  must  bo 
I.  ( >nlinarily  one  must  be  made  a  part  to  a  suit,  or  ho  will 
not  be  bound  or  concluded  by  the  judgment.  A  court  of  equity 
will  not  make  a  decree  where  it  is  apparent  that  it  cannot  definitely 
settle  the  rights  of  the  parties  or  make  a  final  disposition  of  the 
subject  of  litigation.1  And  where  judgment  is  entered  against  a 
person  without  his  being  made  a  party  to  the  proceeding,  he  may 
have  it  vacated  by  a  direct  proceeding,  or  may  treat  it  as  void  in 
any  collateral  proceeding  in  which  rights  claimed  under  it  are  as- 
serted against  him.2  One  of  the  exceptions  to  the  rule  is,  that  nec- 
essary parties  whose  names  are  unknown  may  be  omitted,  anil  the 
case  may  proceed  without  them.3  It  has  been  the  policy  from  an 
early  day  to  decide  the  interest  and  rights  of  all  parties  in  the  sub- 
ject-matter of  litigation  in  one  suit,  leaving  as  little  room  as  possi- 
ble for  a  multiplicity  of  actions.4 

§  14O.  Necessary  and  proper  parties,  plaintiffs  and  defendants. 

A  person  who  has  no  interest  to  be  atfected  by  the  litigation,  and 
whom  it  is  not  sought  to  bind  by  any  judgment,  is  not  a  i 
party  to  the  suit.*  If  the  right  of  action  is  in  one  person  only,  an- 
other cannot  be  joined  with  him  as  plaintiff.6  Every  cause  of  action 
belongs  exclusively  to  him  or  them  whose  right  has  been  violated 
or  withheld.7  It  is  not  a  valid  objection  to  a  petition,  that  parties 
claiming  different  interests,  the  one  a  life  estate  and  the  other  an 
unqualified  title  in  fee-simple,  assert  their  respective  interests  in  the 
same  action."  In  ascertaining  who  are  proper  parties  it  is  not  in- 
dispensable that  all  the  parties  should  have  an  interest  in  all  the 
matters  in  controversy;  it  is  sufficient  if  each  party  has  an  interest 
in  some  matters  in  the  suit,  and  they  are  connected  with  the  others.9 

i  Buffalo  Bayou  Ship  Channel  Co.  v.  Bruly,  45  T.  6;  De  La  Vega  v.  League,  64 

:ker  v.  Sj»enoer.  61  T.  155;   Morrison  v.  Chandler,  44  T.  21:  M..IT: 
I.oftin,  44  T.  17:  McCoy  v.  Crawford,  9  T.  333;  Bert  rand  v.  Bingham,  13  T.  266. 

ley  v.  Morgan,  13  T 

<  Kiirri-  v .  I ;  rry,  3:J  T.  Toi ;  FrancH  v.  Xorthcote,  6  T.  185;  Pitta  v.  Ennis.  1  T. 
Smith  v.  Power,  2  T.  .'.7:   Hull  v.  Hall.  11  T.  W>:  T..l.-r  r,  Ay  res,  I  T. 
•were  v.  Chancy,  21  T.  363;  Pridgen  v.  Andrews,  7  T.  461. 
•T.  &  P.  Ry.  Co.  v.  <;m.  a  App.  C.  C.,  §  173. 

lil«.y  v.  r.  I.  328. 

•Faulk  v.  Kaulk,  23T.  653. 

•IxA  ii"    >  T.  191.     This  was  an  action  by  heirs  against  the  admin- 

istrators on  the  estate  of  the  ancestor  and  their  -un-tii  s.  and  tin-  sun-ties  on  a 
second  bond  i  \.-.uied  iinder  article  1292,  Pasohal's  Dig* -•  [fi  -.  I'.i.VJi. 

It  was  alleged  that  a  larj;"  *<tm  of  money,  the  amount  not  being  known,  was  in 
tin-  hands  of  the  administrator*  when  the  second  bond  wan  ex>-cntod:  that  large 
funds  of  the  estate  wen-  invented  in  railroad  stock  by  one  administrator  \vhil:« 
the  tint  boud  wag  in  force,  in  connection  with  tmreties  on  the  second  bond,  be- 


154  PARTIES   TO    ACTIONS.  [§  140. 

One  who  undertakes  to  guaranty  a  member  of  a  firm  immunity 
from  any  judgment  that  may  be  obtained  against  him  is  neither  a 
necessary  nor  proper  party  to  a  suit  subsequently  brought  against 
the  firm.1  Judgment  may  be  rendered  against  one  who  is  but  a  for- 
mal party  to  a  suit,  if  the  evidence  discloses  that  he  has  incidentally 
received  specific  value  in  a  transaction  connected  with  the  subject 
of  litigation,  for  which,  under  the  evidence  and  pleading:;,  he  should 
account.2 

fore  the  same  was  executed,  and  in  their  own  name,  which  were  held  as  collat- 
erals to  indemnify  the  second  sureties  from  loss  on  their  suretyship;  that  all  the 
papers  of  the  estate  were  lost,  and  though  the  amounts  wrongfully  converted 
under  each  of  the  two  bonds  could  not  be  stated,  about  §17,000  was  converted 
under  each  bond.  They  prayed  that  the  amounts  of  money  wrongfully  con- 
verted, for  which  each  set  of  sureties  were  liable,  might  be  ascertained,  and  for 
judgment  for  the  railroad  stock  against  the  second  set  of  sureties,  for  an  ac- 
count, discovery  and  general  relief.  On  the  question  as  to  proper  parties  it  was 
held:  (1)  There  was  no  misjoinder  of  parties  or  causes  of  action.  (2)  A  joinder 
of  both  sets  of  sureties  as  defendants  in  one  action  was  not  only  proper  for  the 
protection  of  those  interested  in  the  estate,  but  also  for  the  adjusting  of  equities 
existing  among  the  sureties  themselves.  (3)  The  joinder  was  pi-oper  to  avoid  a 
multiplicity  of  suits.  (4)  The  second  set  of  sureties  were  connected  with  the 
subject-matter  of  the  suit  before  their  liability  as  sureties  began,  on  account  of 
their  conversion  of  the  assets  of  the  estate;  and  also  afterwards,  in  the  wrong- 
ful appropriation  of  a  trust  fund,  which  not  only  the  heirs  may  follow,  but 
which  the  sureties  on  the  first  bond  may  follow  for  their  own  protection  in  ad- 
justing liabilities  between  the  two  sets  of  sureties.  (5)  A  bill  of  discovery, 
though  unknown  to  our  practice  in  Texas,  eo  nomine,  is  practically  given  under 
the  statute,  and  a  resort  to  its  provisions,  so  as  to  make  the  answers  of  each  de- 
fendant under  oath  evidence  in  this  case,  approved.  (6)  The  second  set  of  sure- 
ties having,  before  their  liability  as  such  begun,  wrongfully  connected  themselves 
with  the  subject-matter  of  the  suit,  which  was  the  property  of  the  estate,  are 
liable  in  connection  with  the  sureties  upon  the  first  bond,  without  reference  to 
the  bond  which  they  afterwards  executed.  (7)  In  ascertaining  who  are  proper 
parties  to  a  suit,  it  is  not  indispensable  that  all  the  parties  should  have  an  interest 
in  all  the  matters  in  controversy;  it  will  be  sufficient  if  each  party  has  an  in- 
terest in  some  matters  in  the  suit,  and  they  are  connected  with  the  others. 

(8)  One  who  improperly  obtains  from  a  trustee  a  part  of  the  trust  estate  is  a 
proper  party  to  a  suit  against  the  trustee  to  enforce  the  purposes  of  the  trust. 

(9)  The  second  set  of  sureties,  holding  the  proceeds  of  funds  thus  invested  in 
railway  stock,  on  account  of  which'funds  in  part  the  liability  of  the  first  set  of 
sureties  depends,  cannot  be  permitted  to  appropriate  the  same  in  discharge  of 
their  own  liability,  to  the  prejudice  of  the  first  set  of  sureties.    See,  also,  Fine- 
gan  v.  Read,  8  Civ.  App.  33  (27  S.  W.  Rep.  261). 

1  Holloway  v.  Blum,  60  T.  625.    In  Blum  v.  Root,  2  App.  C.  C.,§  98,  it  was  held 
that  such  guarantor  was  a  proper  party,  and  that  he  might  have  been  brought 
in  had  he  been  subject  to  the  jurisdiction  of  the  court. 

2  Harris  v.  Musgrove,  59  T.  401.    Where  several  judgments  were  against  the 
same  persons,  the  questions  with  regard  to  their  validity  and  interpretation 
being  the  same,  executions  thereon  were  levied  upon  the  same  property,  and 
the  question  upon  which  it  was  sought  to  restrain  the  judgments  was  common 
to  all  the  cases,  and  affected  all  alike,  and  where  the  litigation,  therefore,  had 
been  conducted  as  if  the  cases  had  been  but  the  one  case,  it  was  held  that  the 
defendants  in  the  several  judgments  might  join  all  the  plaintiffs  in  the  several 


§  14".]  i-AirriES  TO  ACTL  153 

Whenever  the  right  to  recover  against  one  defendant,  under  alle- 
gations of  the  petition,  would  preclude  the  right  to  recover  against 
another  joined  as  defendant,  there  is  a  misjoinder  of  parties  defend- 
ant.1 

Whether  a  person  is  a  proper  party  is  a  very  different  question 
from  whether  he  is  a  necessary  party ;  in  many  cases  a  person  may 
be  made  a  party  although  he  is  not  an  indispensable  party.2  The 
general  rule,  subject  to  exceptions,  is,  that  only  those  who  have  an 
interest  in  the  suit,  and  against  whom  there  can  be  a  decree,  can 
be  made  parties.8  And  it  is  the  right  of  the  plaintiff  to  make  all 
such  persons  parties,  whether  they  be  residents  or  non-residents.4 
The  interests  of  the  defendants  need  not  be  identical,5  and  all  who 
are  supposed  to  be  liable  should  be  joined,  although  their  liabilities 
aros'e  in  different  ways.  If  the  evidence  should  not  establish  the 
liability  of  one  or  more,  they  will  be  entitled  to  judgment.6  It  is 
not  an  objection  that  the  same  judgment  cannot  be  entered  against 
all  of  the  defendants.7 

A  person  who  has  no  interest  whatever  in  the  subject-matter  of 
the  litigation  should  not  be  joined;  as,  one  who  has  conveyed  away 
all  his  interest  in  the  land  in  controversy,  and  sets  up  no  claim  to 
it.8  But  a  misjoinder  is  no  ground  for  dismissing  as  to  those  prop- 
erly joined.9 

The  same  strictness  of  pleading  in  regard  to  joinder  of  parties 
and  causes  of  action  does  not  prevail  in  Texas  as  is  observed  in 
states  where  the  distinction  between  law  and  equity  forms  of  action 
is  recognized.  Considerable  latitude  is  allowed  to  avoid  a  multi- 
plicity of  suits.10 

suits  as  defendants.  Wills  Point  Bank  v.  Bates,  76  T.  329  (13  S.  W.  Rep.  309). 
A  nmrtuM^r  was  jointly  executed  by  Penny  and  B.  M.  Fleming  and  his  wife,  to 
secure  their  joint  debt  and  future  advances  to  the  firm  of  Fleming  &  Penny. 
Fleming  and  wife  died,  and  their  estates  were  administered  by  McCormick. 
One  suit  was  instituted  against  the  estates  of  decedents  and  Penny  on  the  mort- 
gage, and  upon  an  open  account  for  subsequent  purchases,  with  prayer  for  judg- 
iiu-nts  auamst  the  estates  to  be  certified  to  the  probate  court  for  observance. 
ami  tur  ju'lumriit  and  execution  against  Penny.  It  was  held  there  was  IK.  mis 
joinder  of  parties  nor  of  causes  of  action.  McCormick  v.  Blum,  4  Civ.  App.  9 
\V.  Rep.  lor.l.  . 

'  Williams  v.  Robinson,  63  T.  576;  Clegg  v.  Varnell,  18  T.  300;  Frost  v.  Frost, 
45  T.  340. 

'Birdwell  v.  Butler,  13  T.  338. 

•Johns,  ,n  v.  Davis.  7  T.  17& 

Ml.-rrin.u't.m  v.  Williams,  ill  T.  *K 

»Teas  v.  McDonald,  13  T.  349;  Vogelsang  v.  Mensing,  1  App.  C.  C.,  §  iur». 

•O'Shea  ».  Twohig,  9  T.  836;  Navigation  Co.  v.  Dwyer,  29  T.  376. 

"  Bennett  v.  Spillars.  7  T.  600. 

«Herrington  v.  Williams.  :il  T.  448. 

9  Johnson  v.  Davis,  7  T.  17:!:  Knunons  v.  Oldlmrn.  12  T.  18. 

'"I'ra.l.lurk  v.  (Joodwin,  .->4  T.  578;  Clegg  v.  Vanu-11.  is  T.  'J'.M:  D-.l.l.in  v.  Bryan. 
5  T.  284;  Vogelsang  v.  Mensing,  1  App.  C.  C.,  £  llGo.  A  fund  of  $5.000  upon  the 


156  .    PARTIES  TO   ACTIONS.  .  [§  141. 

g  141.  Heal  party  in  interest  may  sue. 

The  real  owner  of  property,  whether  it  be  a  chose  in  action  or 
not,  may  sue  to  reduce  it  to  possession ;  and  when  a  nominal  party 
refuses  the  use  of  his  name  as  plaintiff  for  the  benefit  of  the  real 
part  v  in  interest,  no  technical  rule  can  prevent  the  real  party  from 
maintaining  an  action  to  protect  that  interest.1  The  rule  of  courts 
of  equity  is  that  the  real  party  in  interest  must  sue.2  The  trans- 
feree of  an  open  account  may  maintain  suit  on  it  in  his  own  name, 
or  he  may  sue  in  the  name  of  the  original  creditor  as  a  nominal 
plaintiff  for  the  use  of  himself.3  And  where  a  party  uses  the  name 
of  another  in  suing  for  his  own  use,  when  he  might  have  sued  in 
his  own  name,  he  may  change  the  suit  into  his  own  name  by  amend- 
ment.4 An  administrator  may  sue  on  a  note  made  payable  to  him.5 

death  of  a  legatee  named  was  to  go  to  the  children  of  Mrs.  Martin.  The  death 
happened.  Mrs.  Martin  had  four  children,  two  of  them  minors.  One  of  the 
adult  children  assigned  to  plaintiff;  the  other  guarantied  the  payment.  Plaint- 
iff, in  a  suit  to  recover  the  interest  assigned,  made  the  adult  legatees  and  the  trust- 
ees parties  defendant.  Upon  exceptions  for  want  of  parties,  it  was  held  that,  as 
the  judgment  could  in  no  way  affect  the  rights  of  the  minor  legatees,  they  were 
not  necessary  parties  to  the  suit,  no  question  being  made  as  to  the  amount  being 
on  hand.  McNeil  v.  Masterson,  79  T.  670  (15  S.  W.  Rep.  673).  M.  and  husband 
sued  G.  and  his  sureties  for  one-third  interest  in  her  mother's  estate,  which  G. 
was  administering  as  community  property.  The  other  defendants  were  G.'s 
sureties  upon  his  bond.  Defendants  excepted  for  want  of  necessary  parties, 
there  being  two  sons,  who  were  minors,  who  were  equally  interested  with  plaint- 
iff in  their  mother's  share  of  the  community.  The  exceptions  were  sustained. 
The  minors  were  then  made  parties,  the  original  parties  amending  and  as  next 
friend  making  them  parties.  Under  such  circumstances  the  defendants  ought 
not  to  be  heard  to  complain  of  the  ruling  of  the  court  holding  the  minors  to  have 
been  properly  made  parties;  such  ruling  having  been  invoked  by  their  own  de- 
murrer to  the  original  petition.  The  minors,  however,  were  proper  parties  plaint- 
iff, as  their  interest  was  adverse  to  the  defendants.  Guy  v,  Metcalf,  83  T.  37  (18 
S.  W.  Rep.  419),  In  a  suit  on  a  note  to  recover  the  price  of  property  sold,  one 
who  guarantied  payment  of  the  price  may  be  joined,  Vogelsang  v.  Mensing,  1 
A  pp.  C.  C.,  §1165. 

1  Morris  &  CummingB  v.  Schooner  Leona,  69  T,  35,    Thus  where  a  franchise 
authorized  the  collection  of  tolls  from  a  lessee  using  a  water-channel,  and  for 
that  purpose  authorized  suit  to  be  brought  in  the  name  of  the  city  of  Corpus 
Christi  for  the  benefit  of  the  owners  of  the  franchise,  the  refusal  of  the  city 
to  permit  the  use  of  its  name  as  a  plaintiff  could  not  defeat  the  right,  and  the 
owners  of  the  franchise  could  maintain  the  action  in  their  own  name.    The  right 
could  not  be  destroyed  by  the  refusal  of  the  city  council  to  authorize  a  suit  in 
the  name  of  the  city.    By  the  act  under  which  the  water-channel  was  con- 
structed, it  was  provided  that  any  one  holding  the  bonds  of  the  city  of  Corpus 
ChriBti,  to  pay  which  the  tollg  were  to  be  applied,  could  enforce  the  payment  of 
tolls  in  the  courts  by  compulsory  process,  and  it  was  held  that  the  appellants  as 
owners  of  those  bonds  could  not  be  affected  in  their  x'ight  to  sue  by  a  refusal  of 
the  city  to  permit  its  name  to  be  used  as  plaintiff, 

2  Thompson  v.  Cartwright,  1  T.  87. 

J  Minis  v.  Swartz,  37  T.  13.    But  see  Devine  v,  Martin,  15  T.  25. 
<  Heard  v.  Lockett,  20  T.  162. 

'McKinney  v.  Peters,  Dallam,  545;  Gayle  v.  Ennis,  1  T.  184;  Grace  v.  Hern- 
don,  2  T,  410;  De  Cordova  v,  Atcbison,  13  T,  372;  Claiborne  v.  Yeoman,  15  T.  44; 


§  142.]  PARTIES   TO    ACTIONS.  157 

The  real  owner  of  a  stock  of  goods  exposed  for  sale,  though  only 
occasionally  present  himself  in  his  store,  and  conducting  his  busi- 
through  clerks  and  servants,  is  in  contemplation  of  law  the 
actual  possessor  of  the  goods,  and  an  action  for  trespass  in  seizing 
tin-in  irrongfolly  must  be  brought  in  his  name  and  not  in  that  of 
one  of  such  clerks  or  servants.  Nor  is  such  a  one  less  the  owner 
and  the  actual  possessor  because  he  had  bought  the  goods  in  the 
name  of  another,  and  shipped  them  in  that  name,  if  he  paid  for 
them  with  his  own  money.1  In  a  suit  to  recover  money  for  a 
county,  brought  in  the  name  of  another  for  the  use  of  the  county, 
the  county  is  the  real  plaintiff,  and  the  name  of  such  other  should 
ricken  out  as  surplusage.  If  this  be  not  done,  no  issue  as  to 
the  authority  of  a  third  party  to  sue  for  the  use  of  the  county  can 
be  made  by  a  party  except  by  plea  in  abatement.3 

A  liquor-dealer's  bond  may  be  sued  on  at  the  instance  of  any  per- 
son or  persons  aggrieved  by  a  violation  of  its  provisions.' 

§  142.  Trustee  and  beneficiary. 

A  trustee  to  whom  goods  have  been  conveyed  for  the  benefit  of 
certain  creditors,  and  who  is  in  actual  possession  of  them  at  the 
time  they  are  taken  under  attachment  by  other  creditors,  may  sue 
for  the  taking  and  conversion  of  the  goods  without  joining  with 
himself  the  beneficiary  creditors  under  the  trust  deed.4  The  trustee 
in  a  deed  of  trust  given  to  secure  the  payment  of  a  note,  with  power 
to  sell,  should  be  made  a  party  to  a  suit  to  recover  judgment  on 
the  note  and  for  a  sale  of  the  property  ; 9  and  where  the  trust  prop- 
erty under  such  a  deed  Is  levied  upon  and  sold  at  the  suit  of  a 
creditor,  subject  to  the  incumbrance,  in  a  suit  by  the  purchaser  at 
execution  sale  to  get  possession  of  the  property,  the  trustee  or  the 
cestui  que  trust  should  be  made  a  party." 

The  rule  is  well  established  that  in  suits  by  or  against  the  trustee 
to  recover  the  trust  property  the  beneficiary  is  a  necessary  party.7 

Hall  v.  Pearman,  20  T.  168.  And  the  rule  holds  in  case  of  notes  made  payable 
to  any  one  in  a  fiduciary  capacity.  McKinney  v.  Peters,  Dallam.  545. 

1  Willis  v.  Hudson,  63  T.  678.  A  contract  between  an  incorporated  city  and 
certain  of  its  citizens  with  a  railway  company,  whereby  the  latter  agreed  for  a 
designated  consideration  to  locate  and  permanently  keep  in  operation  its  main 
machine  shops,  if  sought  to  be  enforced  against  the  company,  should  be  brought 
by  the  municipal  corporation,  or  by  such  of  its  citizens  as  participated  in  fur- 
nishing the  consideration  and  who  thus  have  a  pecuniary  interest  in  the  en- 
forcement of  the  contract.  St.  L,,  A.  &  T.  Ry,  Co.  v.  Harris,  73  T.  375  (11  S.  W. 
Rep.  405). 

2 Smith  v.  Musely.  74  T.  631  (12  a  W.  Rep.  748). 

»R.a  3380. 

*  Sanger  v.  Henderson,  1  Civ.  App,  412  (21  a  W.  Rep.  114). 

»  Shelby  v.  Burtis,  18  T.  644 

e  Ballard  v.  Anderson,  18  T.  377. 

"  Boles  v.  Linthicum,  48  T.  220;  Huffman  v.  Cartwright,  44  T.  296:  Hall  v. 
Harris,  11  T.  300;  Story's  Eq.  PL,  g  207;  2  Perry  on  Trusts,  g  873. 


153  PARTIES   TO    ACTIONS.  [§  143. 

To  this  rule  there  are  well-recognized  exceptions,  but  these  embrace 
mainly  that  class  of  cases  where  by  reason  of  the  number  of  the 
beneficiaries  it  is  inconvenient  to  make  them  parties,  and  where  it 
mav  be  presumed  that  it  was  the  intention  to  invest  the  trustees 
with  power  to  prosecute  and  defend  suits  in  their  own  names.  An 
apt  illustration  of  the  exception  is  found  in  the  case  of  the  trustees 
in  a  mortgage  to  secure  a  series  of  negotiable  bonds  upon  the 
property  of  railroad  companies.1  Another  illustration  is  afforded 
by  the  case  of  an  assignee  in  a  deed  of  assignment  made  by  an  in- 
solvent for  the  benefit  of  his  creditors.2  The  appointment  of  an 
assignee  in  such  cases  generally  grows  out  of  the  necessity  of  hav- 
ing some  agent  to  act  for  beneficiaries,  who  are  usually  too  numer- 
ous to  act  together.  In  such  a  case  the  presumption  is  great  that 
he  is  their  representative  not  only  as  to  the  general  management  of 
the  assets,  but  also  to  prosecute  and  defend  suits  involving  title  to 
the  assigned  estate.  The  authority  granted  to  a  trustee  to  receive 
rents  for  the  use  of  the  cestui  que  trust  and  in  his  discretion  to  sell 
the  property,  the  proceeds  to  go  to  the  benefit  of  the  cestui  que  trust, 
does  not  imply  a  power  in  him  to  defend  alone  a  suit  involving  title 
to  the  trust  estate,  and  the  beneficiary  is  a  necessary  party.3 

All  persons  whose  interests  are  to  be  affected  by  a  decree  to  com- 
pel a  conveyance  of  land  alleged  to  be  held  in  trust  are  necessary 
parties.4  The  general  rule  is  that  the  beneficiary  must  join  in  a 
suit  to  enforce  the  trust.*  And  where  the  legal  title  to  land  sued 
for  is  in  one  of  several  defendants,  and  is  so  held  for  the  benefit  of 
one  of  the  defendants,  the  beneficiary  is  a  necessary  party  to  a  pro- 
ceeding to  annul  such  title.* 

§  143.  Suit  by  one  for  use  of  another. 

The  payee  of  a  note  cannot  maintain  a  suit  thereon  for  the  use 
of  assignees,  who  are  alleged  to  be  the  legal  owners.  It  would  be 
otherwise  if  he  were  alleged  to  be  the  legal  owner,  and  that  the  as- 

1  Shaw  v.  Railroad  Co.,  71  Mass.  162. 

2  Kerrison  v.  Stewart,  93  U.  S.  155. 

»  Ebell  v.  Bur-singer,  70  T.  120  (8  S.  W.  Rep.  77). 

« Huffman  v.  Cartwright,  44  T.  296;  G.,  H.  &  S.  A.  Ry.  Co.  v.  McDonald,  53  T. 
510. 

»  Hall  v.  Harris,  11  T.  300. 

«  Boles  v.  Linthicum,  48  T.  220.  Plaintiffs  were  the  surviving  obligees  of  a 
bond  executed  to  them  by  a  railway  company,  to  secure  to  those  who  had  con- 
tributed money  to  the  road  the  return  of  it  to  them  in  the  event  the  road  was 
not  completed  to  a  certain  place  in  a  certain  time.  The  road  not  having  been 
completed  as  agreed,  the  obligees,  acting  as  trustees  for  all  the  subscribers, 
could  sue  without  making  the  representatives  of  one  of  their  number,  who  had 
died,  parties.  Maintaining  this  suit  as  trustees  for  all  the  subscribers,  plaintiffs 
were  entitled  to  recover  for  the  entire  amount  subscribed  and  paid  by  the  citi- 
zens to  the  railway  company,  including  that  subscribed  and  paid  by  the  deceased 
trustee.  Red  River,  S.  &  W.  Ry.  Co.  v.  Blount,  3  Civ.  App.  282  (22  S.  W.  Rep.  930). 


':  K   145.]  I'AUTIES   TO    ACT1< 

•>  had  an  equitable  interest.1  The  party  in  whose  name  the 
suit  is  brought,  if  he  have  no  interest,  is  not  a  party  in  the  suit, 
and  no  recovery  can  he  had  against  him  without  first  making  him 
a  partv  bv  the  service  of  process  upon  him.  In  case  of  bis  death 
the  suit  will  |  in  the  name  of  the  usee.1 

The  owner  of  property  destroyed  by  fire  may  sue  for  the  use  and 
benefit  of  the  insurance  company,  alleging  an  assignment  to  the 
company  to  the  extent  of  its  claim.1 

144.  Suit  by  one  for  benefit  of  himself  and  others. 

While  the  rule  that  all  parties  in  interest  ought  to  be  made  par- 
s  well  established,  so  also  are  the  exceptions  to  it ;  and  where 
parties  interested  in  the  subject-matter  of  a  suit  are  very  numerous, 
some  of  them  may  maintain  a  suit  for  themselves  and  others  inter- 
ested in  like  manner.4  A  suit  may  be  maintained  by  one  or  more 
of  the  beneficiaries  of  a  charity,  for  the  benefit  of  all,  against  a 
trustee,  when  the  parties  are  numerous,  when  the  trustee  attempts 
to  pervert  the  trust  fund  to  improper  uses,  or  to  deprive  the  bene- 
ficiaries of  its  enjoyment.* 

Creditors  may  sue  for  themselves  and  others  similarly  situated  to 
have  a  conveyance  declared  a  general  statutory  assignment.8 

£  145.  Suits  by  agents. 

The  general  rule  is  that  one  who  contracts  as  agent  cannot  main- 
tain an  action  in  his  own  name  and  right  upon  the  contract.  To 

1  Anderson  v.  Shaw,  2  U.  C.  285;  Jones  v.  Nowland,  Dallam,  451. 

-  Mt-Fadin  v.  MacGreal,  25  T.  73:  Clark  v.  Hopkins,  84  T.  139.  A  plaintiff  stated 
in  his  petition  that  he  was  the  owner  of  certain  goods  injured  by  fire  while  in 
the  possession  of  a  railroad  company  for  shipment;  that  he  had  transferred  to 
an  insurance  company  one-half  of  his  right  of  action  against  the  road,  and  that 
his  suit  was  for  one-half  the  damages  sustained,  for  the  use  of  the  insurance 
company.  The  allegation  in  the  petition  that  the  suit  was  for  the  use  of  the  in- 
surance company  was  held  proper  to  protect  the  interest  of  that  company, 
though  it  did  not  make  it  a  plaintiff,  and  it  was  not  necessary  to  show  by  aver- 
ment or  proof  how  the  insurance  company  acquired  its  interest;  the  owner  of 
the  property  could  recover  without  offering  proof  of  the  transfer  to  the  iii>ur 
ance  company.  If  plaintiff  had  not  averred  that  he  was  suing  for  the  use  of  the 
insurance  company,  defendant  might  have  defeated  his  suit  by  showing  the 
transfer  of  the  cause  of  action.  If  defendant  relied  upon  anything  in  the  trans- 
fer, as  that  the  cause  of  action  had  been  devoted  to  an  illegal  purpose  to  defeat 
the  action,  it  should  have  «et  it  up  in  ite  answer.  The  legal  right  of  action  re- 
mained in  the  owner  of  the  goods,  the  petition  disclosed  a  good  cause  of  action, 
and  the  mere  allegation  by  the  plaintiff  that  the  cause  of  action  had  been  trans- 
ferred did  not  compel  him  to  negative  the  illegality  of  such  a  transfer.  The 
transfer,  when  offered  in  evidence,  could  not  be  excluded  on  the  ground  that  ic 
contained  other  matter  than  the  bare  transfer  itself.  E.  L.  &  R  R  Ry.  Co.  v. 
Hall,  G4  T.  615. 

«  Tex.  &  Pac.  Ry.  Co.  v.  Levine,  29  8.  W.  Rep.  514. 

«Carleton  v.  Roberts,  1  U.  C.  578;  Story's  Eq.  PL  94,  97,  114. 

»Tunstall  v.  Wormier.  .'.1  T. 

«Locht  v.  Blum,  30  a  W.  Rep.  925. 


160  PARTIES   TO    ACTIONS.  [§  146. 

this  rule  are  conceded  exceptions:  (1)  where  the  agent  contracts  in 
his  own  name;  (2)  where  the  agent  does  not  disclose  his  principal, 
who  is  unknown;  (3)  where  by  the  usages  of  trade  the  agent  is 
authorized  to  act  as  owner  of  the  property ;  and  (4)  where  the  agent 
has  an  interest  in  the  subject-matter  of  the  contract;  and  in  this 
case  whether  he  professed  to  act  as  agent  or  not.1  The  exceptions 
to  the  rule  do  not  apply  to  suits  to  recover  land.2  An  attorney 
in  fact  who  has  a  power  to  sell  lands,  -pay  debts,  and  do  all  and 
singular  what  his  principal  could  do,  cannot  maintain  an  action  in 
his  own  name  to  remove  a  cloud  from  the  title  of  his  principal.3 
The  cases  in  which  an  agent  is  allowed  to  sue  in  his  own  name  do 
not  include  the  agency  which  subsists  between  partners,  even  in  a 
case  where  the  partner  seeking  to  maintain  a  suit  in  his  own  name 
is  the  general  agent  and  active  business  member  of  the  firm,  to 
whose  control  the  whole  business  is  intrusted.4 

£146.  Suits  by  assignees,  generally. 

The  assignee  or  equitable  owner  of  a  chose  in  action  may  sue  in 
his  own  name,  and  under  this  is  included  a  claim  for  damages 

/  o 

against  a  railway  company  for  killing  stock.  It  is  said  that  every- 
thing which  can  be  called  a  debt  can  be  assigned,  and  the  assignee 
may  recover  either  in  his  own  name  or  in  that  of  his  assignor.5 
The  assignment  need  not  be  in  writing.  Thus  the  sale  of  goods 
shipped  and  the  delivery  of  the  bill  of  lading  will  enable  the  pur- 
chaser of  the  goods  to  sue  the  carrier  for  a  loss.6  And  it  is  held 
that  this  rule  applies  to  a  chose  in  action  not  evidenced  in  writing, 
or  to  an  open  account.  Equity  will  protect  the  interest  of  the  as- 
signee without  any  express  promise  on  the  part  of  the  debtor  to 
pay  him,  and  he  may  sue  in  his  own  name.7  And  where  a  contract 
in  writing  is  assigned,  thp  assignee  may  sue,  although  he  may  be 
a  mere  trustee  for  the  benefit  of  the  assignor.8 

Where  an  insolvent  makes  an  assignment  for  the  benefit  of  cred- 
itors, suit  will  lie  against  the  assignee  by  the  assignee  of  a  claim 
against  the  estate,  without  making  the  assignor  of  the  claim  a 
party.  In  such  case  the  defendant,  if  he  deems  it  necessary  for  his 
own  protection,  may,  if  he  moves  promptly,  have  the  assignor 

1  Tinsley  v.  Dowell,  87  T.  23  (26  S.  W.  Rep.  946). 

2  Holloway  v.  Holloway,  30  T.  164 
«  Robson  v.  Tait,  13  T.  272. 

*  Speake  v.  Prewhit,  6  T.  252. 

6G.,  H.  &  S.  A.  Ry.  Co.  v.  Freeman,  57  T.  156.  A  claim  for  damage  to  crops 
caused  by  an  overflow  may  be  assigned.  G.,  C.  &  S.  F.  Ry.  Co.  v.  Jones,  3  App. 
C.  C.,  g  14. 

«T.  &  P.  Ry.  Co.  v.  Wright,  2  App.  C.  C.,  §  340. 

^Rollison  v.  Hope,  18  T.  446. 

•Devine  v.  Martin,  15  T.  25;  Smalley  v.  Taylor,  33  T.  6G8. 


§14'  i.\i:ms  TO  ACTl'  161 


in:  or  ihe  assignor  might,  at  a  proper  time  and  upon  a 
showing,  make  himself  a  party  by  intervention.1 

A  j>artial  assignment  of  a  chose  in  action  is  good  in  equity, 
though  the  le^ral  title  remains  with  the  assignor.2  And  it  is  well 
settled  that  the  holder  of  the  legal  title  of  a  chose  in  action  may 
briiiLT  suit  upon  it  in  his  o\vn  name,  although  the  equitable  right 
may  be  in  another.3  The  equitable  owner  is  a  proper  but  not  nec- 
party,  unless  the  debtor  have  some  legal  defense  as  against 
him  alone.4 

A  policy  of  insurance  is  such  an  instrument  in  writing  as,  under 
articles  :\<^  and  309  of  the  Revised  Statutes,  may  be  assigned,  so 
as  to  enable  the  assignee  to  maintain  an  action  in  his  own  name. 
Such  assignment,  after  a  loss  has  been  sustained,  passes  the  legal 
title,  and  invests  the  assignee  with  the  exclusive  right  to  sue  upon 
it.  It  is  subject,  however,  to  every  discount  and  defense  which 
could  have  been  set  up  against  it  in  the  hands  of  the  previous  owner 
before  notice  of  the  assignment.  The  fact  that  the  assignment  was 
made  as  collateral  security  for  a  debt  will  not  vary  the  rule.  If 
the  assignor  has  an  equitable  interest  in  the  claim,  he  may  be  joined 
o-plaintiff,  but  cannot  prosecute  alone.5 

When  a  part  of  a  debt  has  been  assigned,  the  assignee  acquires  a 
right  of  action  in  equity  against  the  debtor,  and  not  only  a  lien 
upon  the  fund  but  a  property  in  the  fund  itself.  Though  he  owns 
but  an  interest  in  the  chose  in  action,  he  may  enforce  its  collection 
and  an  equitable  distribution  by  suit  against  the  debtor  and  the 
other  parties  in  interest.  The  several  claimants  under  assignments 
of  specific  interests  in  the  debt  have  priority  of  right  to  payment 
in  accordance  with  the  dates  at  which  their  interests  were  ac- 
quired.8 

It  has  never  been  recognized  as  a  rule  that  a  debtor  when  sued 

irf  v.  Johnson,  8  App.  C.  C.,  8  399. 

-  1  1  arris  County  v.  Campbell,  68  T.  22  (3  S.  W.  Rep.  243). 

3  Rider  v.  Duval,  28  T.  6^:',:  Wimbish  v.  Holt,  20  T.  674;  Butler  v.  Robertson, 
11  T.  14,':  Thompson  v.  Cartwright,  1  T.  87;  Life  Ins.  Co.  v.  Ray,  50  T.  511. 

'  I  •  \    W.->t.  Ry.  Co.  v.  Gentry,  69  T.  625  (8  a  W.  Rep.  98). 

8  East  Tex.  Fire  Ins.  Co.  v.  Coffee,  61  T.  287.    See  Perry  v.  Insurance  Co.,  25  Ala. 

860;  Archer  v.  Insurance  Co.,  43  Ma  442;  Carpenter  v.  Miles  17  K  Mon.  601.    The 

•:••»•  of  an  insurance  policy,  with  power  to  collect  the  amount  due  and  apply 

it  on  debts  due  him  and  others  by  the  assignor,  is  a  proper  party  in  a  suit  on  the 

I  M.I  icy  by  the  assignor.    Alamo  Fire  Ins.  Co.  v.  Schmitt,  80  S.  W.  Rep. 

•Harris  Co.  v.  Campbell,  68  T.  JJ  .::  s.  \V  U,  p.  -.'»::  :  Clark  v.  (JilU-spiV.  70  T. 
513  (8  S.  W.  Rep.  121).  Suit  filed  January  9,  1890.  On  same  day  tin-  plaintitf 
executed  to  his  attorn,  -y  a  transfer  of  two-thirds  <>f  tho  amount  to  be  recovered. 
The  transfer  followed  the  petition  in  the  transcript  The  attorney  named  in 
the  transfer  prosi-cuU'd  the  suit  in  the  district  court  to  judgment,  and  repre- 
sented plaintitf  on  appeal  by  the  defendant  Pica  in  abatement  was  urged  for 
the  non-joinder  of  the  attorney  as  a  party  plaintiff.  The  plea  was  properly 
overruled,  as  it  will  be  presumed  that  the  transfer  was  subsequent  to  the  filing 
11 


PARTIES    TO    ACTIONS.  [§147. 

lias  the  right  to  have  every  precedent  owner  of  the  assigned  instru- 
ment sued  upon  made  a  party  in  order  that  they  may  be  estopped 
by  the  judgment.  It  is  sufficient  that  plaintiff  prove  ownership  of 
the  claim  sued  on.  It  is  the  debtor's  right  in  every  case,  by  proper 
pleadings,  to  compel  the  plaintiff  who  sues  upon  an  assigned  in- 
strument to  show  title  in  himself  by  proving  the  genuineness  of  all 
transfers.  This  is  all  the  protection  the  law  gives  in  such  cases, 
and  it  is  held  to  be  ample.  This  ruling  was  made  in  a  suit  by  the 
assignee  of  time-checks  issued  to  laborers  by  a  contractor  on  a 
railroad,  and  was  in  reply  to  a  contention  that  the  subcontractors 
ought  to  have  been  joined.  The  suit  was  against  the  company  and 
the  contractor.  The  case  is  said  to  differ  from  the  case  of  Austin 
&  N.  W.  Ky.  Co.  v.  Eucker,  59  T.  587.  It  was  held  in  that  case 
that  the  assignee  of  such  a  claim  may  sue,  but  that  where  the  suit 
is  against  the  railway  to  enforce  the  lien,  on  due-bills  issued  by  a 
subcontractor  and  assigned  to  plaintiff,  the  contractor  and  sub- 
contractors ought  to  be  joined,  so  as  to  make  the  judgment  binding 
upon  them.1 

§  147.  Assignee  of  commercial  paper  may  sue. 

An  assignee  of  a  negotiable  instrument  may  maintain  any  action 
in  his  own  name  which  the  original  obligee  or  payee  might  have 
brought,  allowing  all  just  discounts  against  himself  or  his  assignor 
as  provided  by  the  statute.2  The  assignee  of  a  non-negotiable  in- 
strument may  also  sue  in  his  own  name,  but  is  required  to  allow 
every  discount  and  defense  against  such  instrument  which  it  would 
have  been  subject  to  in  the  hands  of  any  previous  owner  before 
notice  of  the  assignment  was  given  to  the  defendant  ;  and  in  order 
to  hold  the  assignor  as  surety  for  the  payment  of  the  instrument 
the  assignee  must  use  due  diligence  to  collect  the  same.  Waiver 
of  diligence  on  the  part  of  the  assignor,  drawer  or  indorser  cannot 
be  shown  by  parol.  Assignors,  indorsers  and  other  parties  not  pri- 
marily liable  may  be  jointly  sued  with  the  principal  obligors,  or 
may  be  sued  alone  in  the  cases  provided  for  in  articles  1203  and 
1204,  Revised  Statutes.3 

The  general  rule  is  that  the  person  who  appears  to  be  the  legal 
holder  of  a  promissory  note  may  sue  upon  it  in  his  own 


of  the  petition.  But  a  reversal  would  not  result  from  the  fact  that  the  trans- 
fer antedated  the  filing  of  the  petition,  as  the  attorney  so  identified  himself 
with  the  suit  as  to  become  bound  by  its  result.  Bonner  v.  Green,  6  Civ.  App. 
96  (24  S.  W.  Rep.  835). 

»  San  A.  &  A.  P.  Ry.  Co.  v.  Cockrill,  72  T.  613  (10  S.  W.  Rep.  70S).  Where  one 
who  has  collected  notes  is  sued  by  an  assignee  thereof  after  maturity,  and 
pleads  a  set-off  against  the  assignor,  the  latter  is  a  proper  party.  Stafford  v. 
Blum,  27  S.  W.  Rep.  12. 

*  R  S.  307. 

*RS.  309-312.    See  §§  119,  120,  infra. 


J;  147.]  PARTIES  TO  ACTIONS.  163 

though  the  actual  or  equitable  ownership  may  be  in  another.1  The 
-sion  by  plaintiff  of  a  note  payable  to  a  named  person  or  order, 
or  hearer,  acquired  before  maturity,  constitutes  a  prima  facie  case, 
and  entitles  him  ordinarily  to  recover.2  Either  the  legal  or  equita- 
ble owner  may  sue;*  thus  a  guardian  ad  litem,  to  whom  notes  are 
made  payable,  may  sue  without  any  averment  that  the  suit  is  for 
the  use  of  the  minors;  *  or  a  guardian,  to  whom  a  note  is  made  pay- 
able jointly  with  his  ward.  The  guardian  in  such  case  is  the  legal 
holder,  and  a  judgment  at  his  suit  would  bind  the  ward.5 

If  a  promissory  note  is  acquired  in  good  faith,  before  maturity,  it 
does  not  affect  the  title  of  the  holder  that  the  one  from  whom  he 
acquired  it  had  no  title.6  An  indorsement  for  collection  merely 
will  entitle  the  holder  to  sue.7  And  such  an  indorsement  being 
subject  to  recall  at  pleasure,  the  indorser  may  sue.  Possession  is 
sufficient  to  show  continued  ownership.8  But  the  indorsement  of  a 
note  for  collection  destroys  its  negotiability ;  the  transferee  for  col- 
lection cannot  assign  it.9  The  payee  of  a  note  may  erase  his  own 
and  subsequent  indorsements,  and  sue  in  his  own  name,  alleging 
himself  to  be  the  legal  owner.10  But  where  an  instrument,  when 
sued  on,  had  been  indorsed  to  other  parties  for  a  valuable  consid- 
eration, and  there  was  no  averment  that  the  payee  was  at  the  time 
of  instituting  suit  the  legal  owner,  an  exception  setting  up  such 
fact  was  well  taken.11 

The  mere  possession  of  a  negotiable  instrument  produced  in  evi- 
dence by  the  indorsee  or  assignee  when  no  indorsement  is  neces- 
sary imports  prima  facie  that  he  acquired  it  bona  fide  for  full 

1  Thompson  v.  Cartwright,  1  T.  87;  Gayle  v.  Ennis,  1  T.  184;  Thomas  v.  Young, 
.1  T.  868;  Hays  v.  Cage,  2  T.  501;  Martel  v.  Hernsheim,  5  T.  205;  Wimbish  v.  Holt, 
26  T. 

2  Guerin  v.  Patterson,  55  T.  124;  First  Nat.  Bank  v.  Beck,  2  App.  C.  C.,  §  832; 
Faulkn-r  v.  \Yarr.-n.  1  App.  C.  C.,  g  659. 

SMrf'arty  v.  Bn-rkenridge,  1  Civ.  App.  170  (20  S.  W.  Rep.  907). 

'WimbuhY.  Holt,  26  T. 

'Ezell  v.  K.I  wards,  2  App.  C.  C.,  §  789;  Portis  v.  Cummings,  21  T.  265.  It  ap- 
.^  th;it  the  plaintiff  was  the  indorsee  without  consideration,  and  only  for 
convenience,  of  a  number  of  bonds  or  promissory  notes,  the  defendant-,  tin- 
makers  of  such  obligations,  can  make  any  defense  they  could  make  if  sued  by 
tin- original  payee  or  payees.  Elwell  v.  Tatum,  6  Civ.  App.  397  (24  S.  W.  Rep. 
71:  •,':,  S.  \V.  K..|,  434). 

s  Wilson  v.  Denton,  82  T.  531  (18  &  W.  Rep.  620);  Ross  v.  Smith,  19  T.  172; 
Greneaux  v.  \Vh.-eler,  6  T.  515. 

•  Aii'ln-u-  v.  Hoxie,  5T.  171. 

•Daughcrty  v.  Eastburn.  74  T.  68  (11  S.  W.  Rep.  1053);  Grant  v.  Ennis,  5  Civ. 
API  \V.  Rep.  998). 

"Kempner  v.  Jordan.  3  Civ.  App.  129  (22  S.  W.  Rep.  1001). 

"Collins  v.  Bank,  75  T.  254  (11  S.  \V.  Rep.  1053j;  Jensen  v.  Hays,  2  App.  C.  C., 

»  Tex.  L.  &  C.  Co.  v.  Carroll,  63  T.  48;  Grant  v.  Ennis,  5  Civ.  App.  44  (23  S.  W. 
Rep.  998) ;  Johnson  v.  Arlidge,  17  S.  W.  Rep.  28 ;  Garza  v.  Manchke,  23  S.  W.  Rep.  836. 


164  PARTIES   TO   ACTIONS.  [§  148. 

value  in  the  usual  course  of  business  before  maturity,  and  without 
notice  of  any  circumstances  impeaching  its  validity,  and  that  he,  as 
the  owner,  is  entitled  to  recover  against  the  maker,  notwithstand- 
ing there  might  be  a  good  defense  against  the  payee.1 

A  holder  of  a  non-negotiable  instrument  may  maintain  an  action 
\i)  ion  it  in  his  own  name,  but  he  must  show  his  right  to  the  paper, 
either  by  indorsement  or  proof  of  ownership.2  He  must  prove  that 
he  came  honestly  by  the  instrument,  and  for  a  valuable  considera- 
tion; possession  alone  will  not  entitle  him  to  a  judgment.3  It  is 
said  that  an  assignee  of  such  an  instrument,  either  by  parol  or  de- 
livery, is  entitled  at  law  to  sue  the  maker  in  the  name  of  the 
assignor,  and  in  equity  to  bring  suit  in  his  own  name.  And  since 
there  is  no  distinction  between  law  and  equity  in  this  state,  it  fol- 
lows that  an  assignee  by  simple  delivery  may  sue  in  his  own  name.4 
The  possession  of  a  promissory  note,  payable  to  the  order  of  an- 
other, and  not  indorsed  to  the  holder,  nor  indorsed  in  blank  by  the 
payee,  does  not  constitute  such  evidence  of  ownership  as  will  en- 
able the  person  in  possession  to  maintain  an  action,  upon  allegation 
that,  for  value  received,  it  was  transferred  to  him  by  delivery.  The 
only  instruments  in  which  the  law  recognizes  the  property  as  pass- 
ing, like  coin,  with  the  possession,  are  those  termed  negotiable,  and 
which  are  transferable  by  delivery,  viz. :  Bills  and  notes  payable  to 
bearer,  or  payable  to  order  and  indorsed  in  blank.  In  such  cases 
the  legal  right  passes  by  delivery,  and  possession  is  prima  facie  evi- 
dence of  right.5  It  is  the  duty  of  the  assignee  of  a  non-negotiable 
instrument  to  promptly  notify  the  maker  of  the  transfer,  and  the 
maker  will  be  protected  if  he  pays  the  payee  without  notice  of  the 
assignment,  the  absence  of  the  note  being  reasonably  accounted 
for.6 

§  148.  Suits  by  or  against  counties,  cities,  etc. 

A  suit  by  or  against  a  county,  or  an  incorporated  city,  town  or 
village,  must  be  by  or  against  it  in  its  corporate  name.7 

Where  the  bond  of  a  county  treasurer  is  executed  to  the  county 
judge  by  name,  but  without  describing  him  as  judge,  a  suit  on  such 
bond,  brought  in  the  name  of  the  obligee  for  the  use  of  the  county, 

>  Blum  v.  Loggins,  53  T.  121;  Tex.  B.  &  Ins.  Co.  v.  Turnley,  61  T.  365;  Hooks 
v.  Bramlette,  1  App.  C.  C.,  §  865. 

'Hoffman  v.  Bignall,  1  App.  C.  C.,  §  706;  Merlin  v.  Manning,  2  T.  351;  Heard 
v.  Lockett,  20  T.  162. 

»  Ross  v.  Smith.  19  T.  173. 

«Ogden  v.  Slade,  1  T.  13;  Merlin  v.  Manning,  2  T.  351;  Smith  v.  Clopton,  4  T. 
169;  Ross  v.  Smith,  19  T.  171;  Devine  v.  Martin,  15  T.  25;  Guest  v.  Rhine,  16  T. 
349. 

5  Ross  v.  Smith,  19  T.  171. 

6Swearingen  v.  Buckley,  1  U.  C.  421. 

7R.&1196. 


§  149.]  PARTIES   TO    ACTIONS.  165 

is,  in  effect,  a  compliance  with  the  above  statute,  the  county  being 
the  real  plain  tiff.  It  is  not  necessary  that  the  petition  should  sho\v 
on  its  face  that  the  county  had  authorized  the  suit.  Such  an  objec- 
tion can  be  taken  only  by  plea  in  abatement.1 

S  149.  Corporations  may  sue. 

A  corporation,  created  by  or  under  the  laws  of  this  state,  or  of 
any  other  state  or  territory,  or  of  any  foreign  government,  may 
sue  in  its  corporate  name.2  Where  the  plaintiffs  are  a  domestic 
corporation,  created  by  a  public  law,  it  is  not  necessary  that  they 
should  allege  or  prove  that  they  are  a  corporation,  as  the  court 
must  judicially  take  notice  of  that  fact;3  but,  if  the  plaintiffs  are  a 
domestic  corporation,  created  by  a  private  act,  or  a  foreign  corpo- 
ration, the  court  cannot  judicially  know  the  name  or  legal  being  of 
such  corporation,  and  those  facts  must  be  alleged  and  proved.4  It 
is  not  necessary,  in  a  suit  by  a  foreign  or  domestic  corporation,  to 
set  out  the  names  of  the  persons  who  form  such  corporation.5 

Where  a  foreign  corporation  is  sued,  and  it  transpires  that  it  has 
been  dissolved  by  a  decree  of  the  courts  of  the  state  of  its  origin,  if 
plaintiff  desires  to  pursue  the  cause  he  must  bring  in  the  receiver.6 
A  foreign  banking  corporation  may  sue  in  this  state  on  a  contract 
made  in  another  state,  notwithstanding  the  prohibition  in  article  16, 
section  16,  of  the  constitution.7 

'Smith  v.  Wingate,  61  T.  54.  Article  1045,  Paschal's  Digest,  was  substantially 
the  same  as  the  above  statute,  and  it  was  held  that  the  chief  justice  could  not 
bring  an  action  in  his  own  name  for  the  use  of  the  county.  De  La  Garza  v. 
Bexar  Co.,  31  T.  484 

2  Bank  v.  Simonton,  2  T.  536;  1  Black,  Cora.  474-5.  Counties  are  bodies  cor- 
porate and  politic,  and  suits  may  be  brought  by  them  in  the  name  of  the  county. 
E.  &  1 196. 

'  A  motion  against  a  sheriff  alleged  .  .  .  comes  John  D.  McLeod,  chief  jus- 
tice of  the  county  of  Bezar,  and  who  moves  herein,  in  behalf  of  said  county  of 
Bexar,  etc.,  .  .  .  wherefore  the  said  J.  D.  McLeod,  chief  justice  as  aforesaid, 
acting  in  behalf  of  said  county,  moves,  etc.  It  was  held  that  the  motion  should 
have  been  made  in  the  name  of  the  county,  and  that  exceptions  thereto  une 
improperly  overruled.  De  La  Garza  v.  Bexar  Co.,  31  T.  484.  Where,  in  a  gen- 
eral act  of  the  legislature,  the  corporate  existence  of  a  railroad  in  this  stnt--  is 
recognized,  the  courts  will  take  judicial  notice  of  the  existence  of  the  corpora- 
tion. H.  &  T.  C.  Ry.  Co.  v.  Knapp,  51  T.  569.  Railway  charters  are  generally 
treated  as  private  acts,  of  which  the  courts  do  not  take  judicial  notice,  and  if 
a  charter  in  question  is  an  exception  to  the  general  rule,  it  must  be  shown. 
Conley  v.  C.  T.  Ry.  Co.,  44  T.  579.  A  court  can  acquire  no  jurisdiction  over  a 
corporation  through  a  petition  filed  against  its  agent.  Bowers  v.  Continental 
Ins.  Co.,  65  T.  51.  Corporations  must  sue  and  be  sued  in  their  corporate  names; 
and  the  court  will  not  presume  that  the  Southern  Pacific  Railway  Company 
and  the  Southern  Pacific  Company  are  the  same  company.  So.  Par.  Co.  v. 
Burns.  23  S.  W.  Rep.  288:  So.  Pac.  Co.  v.  Block,  84  T.  21  (19  S.  W.  Rep.  300). 

«  Bank  v.  Simonton.  2  T.  .-,:>,! ;  Hollow  v.  Memphis.  El  P.  &  Pac.  R  T.  465. 

*  Texas  Pleading  (189S).  £  399. 

•Life  Ass'n  of  Am.  v.  Ooode,  2  U.  C.  414. 

'Freeman  v.  Bank  of  Commerce,  3  Apjx  C.  C..  £  338, 


166  PARTIES    TO   ACTIONS.  [§§  150,  151. 

§  1 60.  Joinder  of  plaintiffs  and  defendants  having  separate  and  dis- 
tinct interests. 

Two  or  more  persons  ma}7  join  in  a  suit  to  enjoin  the  collection  of 
>.  and  the  aggregate  of  their  claims  may  confer  jurisdiction  on 
the  court  when  the  amount  of  the  claim  of  either  alone  would  not  be 
sufficient.1  Several  creditors  may  join  in  a  suit  to  enjoin  a  sale  of 
attached  property  under  a  judgment  at  the  suit  of  another  creditor. 
This  course  is  commended,  as  it  prevents  a  multiplicity  of  suits.  The 
bill  relates  to  but  one  subject-matter,  and  is,  therefore,  not  multi- 
farious.2 

Where  one  pays  out  money  at  the  request  of  a  railroad  company, 
to  take  up  and  pay  off  time-checks  issued  by  a  contractor  to  labor- 
ers, suit  may  be  brought  against  the  company  without  joining  the 
contractor.3  But  it  has  been  held  that  where  an  assignee  of  such  a 
claim  sues,  not  only  to  recover  the  amount  due,  but  also  to  enforce 
the  lien,  the  contractor  and  subcontractors  are  necessary  parties.4 

§  151.  Joint  owners. 

All  joint  owners  must  join  in  an  action  to  recover  property  in 
case  of  a  joint  bailment.  Joint  creditors,  whether  by  record,  spe- 
cialty, or  simple  contract,  must  all  join  in  an  action  to  recover  the 
debt  or  the  estate  which  they  respectively  hold  together.5  "Where 
an  action  was  brought  by  one  of  two  obligees,  and  the  defendant 
excepted  to  the  petition  on  account  of  the  non-joinder  of  the  other 
obligee,  whom  the  plaintiff  had  alleged  to  be  deceased,  it  was  held 
that  the  exception  was  sufficiently  answered  by  another  averment 
of  the  petition  that  the  survivor  was  the  sole  owner  of  the  cause  of 
action.6 

Joint  owners  cannot,  by  any  arrangement  between  them,  so  di- 
vide the  debt  as  to  enable  each  to  sue  separately  for  his  own  inter- 
est.7 They  must  join  in  a  suit  against  a  common  carrier  for  injury 

1  Hamilton  v.  Wilkerson,  1  App.  C.  C.,  §  556;  Girardin  v.  Dean,  40  T.  243;  Car- 
lile  v.  Eldridge,  1  App.  C.  C.,  §  986. 

2  Orr  v.  Moore,  1  App.  C.  C.,  §  588. 

'Ware  v.  G.,  H.  &  S.  A.  Ry.  Co.,  2  App.  C.  C.,  §  740;  S.  A.  &  A.  P.  Ry.  Co.  v. 
Cockrill,  72  T.  613  (10  S.  W.  Rep.  702). 

4  Austin  &  N.  W.  Ry.  Co.  v.  Rucker,  59  T.  587. 

*Stachley  v.  Pierce,  28  T.  328.  Where  the  plaintiff  declared  in  his  own  right, 
and  produced  a  receipt  which  showed  a  joint  cause  of  action  with  another  as  to 
a  part  of  the  demand,  although  that  other  swore  that  he  had  no  interest  in  the 
thing  bailed,  and  never  had,  and  that  the  balance  of  the  money  due  was  the  ab- 
solute property  of  the  plaintiff,  the  court,  without  passing  upon  the  objection 
to  the  evidence  of  the  witness,  or  the  effect  of  his  statement,  reversed  the  judg- 
ment against  a  special  verdict,  although  there  were  no  instructions  in  the  record. 
See,  also,  Hanner  v.  Surnmerhill,  7  Civ.  App.  235. 

•  Hansell  v.  Gregg,  7  T.  223. 

'Strohl  v.  Pinkerton,  1  App.  C.  C.,  §  471;  Speake  v.  Prewitt,  6  T.  252. 


I'A  Kills    TO    ACTI  167 

to  goods  shipiKHl;1  or  to  recover  for  property  destroyed;2  or  in 
"f  crops  destroyed  by  fire.3     The  surviving  wife  cannot  sue 
alon»-  f«>r  damage  to  land  belonging  to  herself  and  children.     The 
•hat  the  property  is  a  homestead  does  not  alter  the  rule.4 
re  the  suit  is  for  damages  for  the  destruction  of  grass,  turf, 
past ura .ire,  hay  and  cotton,  all  parties  interested  in  the  recov- 
ery must  be  joined,  though  one  of  them  has  an  interest  only  in  the 
•  'i.     ( >ur  system  abhors  a  multiplicity  of  suits,  and  there  is  no 
good  reason  for  requiring  more  than  one  suit  where  the  claims  for 
damaL-v*  ai«-  based  upon  the  same  negligent  acts  and  constitute  but 

ransaction.5 

The  rule  is  well  settled  that  in  actions  upon  joint  contracts  all 
persons  in  whom  the  right  of  action  exists  must  be  made  parties, 
and  a  failure  to  make  them  such  will  prove  fatal  to  the  right  to 
recover,  whether  the  defendant  pleads  the  non-joinder  in  abate- 
ment or  not.  The  failure  to  make  the  necessary  parties  plaintiff  to 
an  action  on  a  joint  contract  will  be  considered  oil  appeal,  if  brought 
to  the  notice  of  the  court,  whether  the  defendant  raised  the  ques- 
tion by  plea  in  the  lower  court  or  not.  The  error  is  fundamental.8 

?  152.  Joinder  of  several  obligors. 

The  acceptor  of  any  bill  of  exchange,  or  any  other  principal 
obligor  in  any  contract,  may  be  sued  either  alone  or  jointly  with 
any  other  party  who  may  be  liable  thereon;  but  no  judgment  shall 
be  rendered  against  such  other  party  not  primarily  liable  on  such 
bill  or  other  contract,  unless  judgment  shall  have  been  previously, 
or  shall  be  at  the  same  time,  rendered  against  such  acceptor  or 
other  principal  obligor,  except  where  the  plaintiff  may  discontinue 
his  suit  against  such  principal  obligor.7 

Where  a  suit  is  discontinued  as  to  a  principal  obligor,  no  judg- 
ment can  be  rendered  therein  against  an  indorser,  guarantor,  surety 
or  drawer  of  an  accepted  bill  who  is  jointly  sued,  unless  it  is  alleged 
and  proved  that  such  principal  obligor  resides  beyond  the  limits  of 
th«-  state,  or  in  such  part  of  the  same  that  he  cannot  be  reached  by 
the  ordinary  process  of  law,  or  that  his  residence  is  unknown  and 
cannot  be  ascertained  by  the  use  of  reasonable  diligence,  or  that  he 
i>  dead  or  actually  or  notoriously  insolvent.8 

Pac.  Ry.  Co.  v.  Rushin.  3  App.  C.  C.,  £317. 
&  Pac.  Ry.  Co.  v.  Williams,  1  App.  C.  C..  £  249. 
»H.  &  T.  C.  Ry.  ( to.  v.  Hollingswortli.  i  App.  C.  (X,  ?  173;  Tex.' &  Pac.  Ry.  Co. 

T.  Beam-hamp.  i.l..  .i'?'  17*).  176. 

4  M...  Par.  Hy.  _"ii.-.  •,'  App.  ('.<'..  ?'  780. 

I  M...  Par.  Hy.  (.'•..  v.  \Vi-.«-.  :;  App.  < 

'Hanner  v.  Smmm-rhill,  7  Civ.  App.  •>:}:> -.  Holliman  v.  Rogers,  6  T.  91. 

S.  1203. 
8R.S.1- 


103  PARTIES   TO    ACTIONS-  [§  152, 

It  is  a  general  and  fundamental  rule  at  common  law,  where  the 
:»i-tion  is  upon  a  joint  obligation,  that  all  the  joint  obligors  should 
be  made  defendants.  Article  1203,  above  quoted,  changes  the  com- 
mon-law rule,  and  makes  it  no  longer  necessary  to  join  as  defend- 
ants all  joint  obligors  in  a  suit  upon  a  joint  contract.1 

In  a  suit  to  foreclose  a  mortgage  against  parties,  each  of  whom 
claims  in  his  own  right  and  holds  possession  of  a  portion  of  the* 
mortgaged  property,  all  may  be  joined  as  defendants.  If  the  mort- 
<l  property,  after  sequestration,  be  replevied  by  the  defendants 
jointly,  a  joint  judgment  may  be  rendered  against  all;  their  joint 
liability  resulting  from  their  bond.2  The  technical  rule  of  the  com- 
mon law,  that,  upon  a  contract  which  is  joint  and  several,  the 
plaintiff  must  sue  all  or  but  one,  and  cannot  sue  two  or  more  with- 
out suing  all,  has  never  been  recognized  in  practice  in  Texas.3 

A  fair  construction  of  the  statutes  seems  to  confine  their  opera- 
tion to  a  suit  brought  against  a  defendant  in  his  character  as  in- 
dorser,  guarantor  or  surety,  when  his  engagement  had  defined  his 
position  to  be  such,  and  does  not  extend  to  a  case  where  he  has 
made  himself  a  principal  upon  the  face  and  by  the  terms  of  the  ob- 
ligation. Where  parties  sign  as  principals,  they  are  such  in  rela- 
tion to  the  obligee,  and  in  a  suit  against  them,  where  citation  as  to 
one  of  them  is  returned  not  served,  it  is  not  error  to  discontinue 
the  suit  as  to  him,  though  his  relation  to  the  other  defendants  is 
that  of  a  surety.4  One  of  several  promisors  not  signing  as  surety 
cannot  plead  that  he  is  a  surety  for  the  purpose  of  allowing  the 
alleged  principal  to  be  jointly  or  simultaneously  sued,  or  of  pre- 
venting the  plaintiff  from  discontinuing  as  to  the  alleged  principal 
not  served  with  process  and  proceeding  against  those  served.5  In 
a  suit  on  a  note  executed  by  a  principal  and  a  surety  (the  surety- 
ship being  apparent  on  the  face  of  the  note),  it  was  error,  after  inef- 
fectual efforts  to  get  service  on  the  principal,  to  dismiss  as  to  him 
and  take  judgment  by  default  against  the  surety,  there  being  no 

1  Hinchman  v.  Riggins,  1  App.  C.  C.,  §§  294,  295;  Kuykendall  v.  Coulter,  7  Civ. 
App.  899  (26  S.  W.  Rep.  748). 

^  Boykin  v.  Rosenfield,  69  T.  115  (9  S.  W.  Rep.  318). 

*Olasscock  v.  Hamilton,  62  T.  143;  Cook  v.  Phillips,  18  T.  33.  When  relief  is 
sought  against  several  defendants,  of  such  a  character  that  it  cannot  be  given 
without  affecting  all  alike,  and  judgment  is  rendered  in  their  favor,  the  appellate 
court  will  not  revise  it  until  all  the  parties  defendant  are  brought  before  it. 
Gates  v.  Sparkman,  66  T.  155. 

4  Hooks  v.  Bramlette,  1  App.  C.  C.,  §§  867,  868.  It  is  said  that  the  case  of  Unger 
v.  Anderson,  37  T.  550.  announcing  a  contrary  rule,  is  not  supported  by  the  cases 
cited,  viz.:  Wiley  v.  Pinson,  23  T.  488;  Mitchell  v.  De  Witt,  25  T.  Sup.  180;  Prid- 
geon  v.  Buchannan,  27  T.  592;  and  that  it  is  contrary  to  the  rule  in  the  follow- 
ing cases:  Ritter  v.  Hamilton,  4  T.  325;  Lewis  v.  Riggs,  9  T.  165.  The  case  of 
Unger  v.  Anderson  is  accordingly  overruled. 

» Lewis  v.  Riggs,  9  T.  164;  Terrell  v.  Townsend,  6  T.  149;  Ennis  v.  Crump,  6- 
T.  85. 


">3,  154.]  PARTIES   TO   ACTIONS. 

suggestion  that  the  principal  resided  beyond  the  limits  of  the 
or  that  he  was  insolvent.1     And  where  an  administrator  and  the 
sureties  on  his  bond  have  been  jointly  sued,  it  is  error  to  permit  the 
plaintiff  t«»  dismiss  as  to  the  administrator  and  take  judgment  by 

ilt  against  the  sureti 

153.  Parties  conditionally  liable. 

The  assignor,  indorser,  guarantor  and  surety  upon  any  contract,, 
and  the  drawerof  any  bill  which  has  been  accepted, may  be  sued  with- 
out the  necessity  of  previously  or  at  the  same  time  suing  the  maker, 
acceptor  or  other  principal  obligor,  when  he  resides  beyond  the 
limits  of  the  state,  or  in  such  part  of  the  same  that  he  cannot  be 
reached  by  the  ordinary  process  of  law,  or  when  his  residence  is 
unknown  and  cannot  be  ascertained  by  the  use  of  reasonable  dili- 
gence, or  when  he  is  dead,  or  actually  or  notoriously  insolvent.1 

No  surety  shall  be  sued  unless  his  principal  is  joined  with  him, 
or  unless  a  judgment  has  been  previously  rendered  against  his  prin- 
cipal, except  in  the  cases  provided  for  in  the  above  article.4 

The  privilege  of  a  surety  not  to  be  sued  unless  the  principal  has- 
been  previously  sued,  or  to  be  simultaneously  sued,  must  be  taken 
advantage  of  in  abatement.  It  is  not  available  in  bar.5  Where  the 
principal  is  dead  the  surety  may  be  sued  without  first  instituting^ 
proceedings  against  the  succession  of  the  principal.6  A  note  in  such. 
case  need  not  be  presented  to  the  administrator  of  the  principal  for 
allowance;  the  sureties  become  primarily  liable.7 

§  154.  Husband  and  wife;  actions  by. 

The  husband  may  sue  either  alone  or  jointly  with  his  wife  for  the 
recovery  of  any  separate  property  of  the  wife ;  and  in  case  he  fail 
or  neglect  so  to  do,  she  may,  by  the  authority  of  the"  court,  sue  for 
such  property  in  her  own  name.8  This  article  originally  read,  "  any 
effects  of  the  wife,"  instead  of  "any  separate  property."  9 

The  facts  giving  the  wife  the  right  to  sue  alone  must  be  averred 
and  proved.  But  authority  need  not  be  obtained  before  the  insti- 
tution of  the  suit.10  The  wife  may  sue  alone  when  the  land  sued 
for  is  shown  to  be  her  separate  property,  and  it  appears  that  the 

>  Foster  v.  Shephard,  33  T.  687. 
»Farris  v.  Berry,  33  T.  ?OL 
JR.a  1204 

*  R.  S.  & 

»  Sherwood  v.  Jordan.  2  U.  C.  610. 

•Scott  v.  Dewees.  2  T.  153:  Evans  v.  Crump,  6  T.  85. 

'Scantlin  v.  K.-mp.  34  T.  3«#. 

•  R  S.  1200. 

»  P.  D.,  art  4636. 

MMclntyr-  v.  i  'happeH,  2  T.  378;  Mitchell  v.  Wright,  4  T.  283;  Jacobs  v.  Cun- 
n  in -ham,  32  T.  77-1. 


170  PARTIES   TO   ACTIONS.  [§  154. 

husband  had  abandoned  her  and  had  neglected  to  sue.1  If  the  hus- 
1 11111(1  refuses  to  join,  the  wife  may  sue  alone  where  the  greater  part 
of  the  purchase-money  of  land  was  her  separate  property.  They 
inav  sue  jointly  to  recover  her  interest.2  A  mere  separation  of  the 
husband  and  wife,  and  his  refusal  to  join  her  in  the  action,  is  not 
sufficient  to  authorize  the  wife  to  prosecute  alone  a  suit  to  recover 
damages  for  an  assault  and  battery  committed  upon  her  during 
coverture.  The  exceptional  cases  in  which  the  wife  has  been  al- 
lowed to  maintain  an  action  for  the  community  estate  have  been 
where  she  had  been  abandoned  by  her  husband  and  was  destitute  of 
the  means  of  support,  unless  she  resorted  to  the  community  prop- 
erty. 

The  husband  may  sue  alone  for  the  recovery  of  the  wife's  sepa- 
rate property,  and  recover  damages  for  injury  to  such  property.4 
The  wife  will  be  protected  where  the  husband  is  negligent  or  acts 
in  fraud  of  her  rights.  He  may  be  made  a  defendant.5  Where  the 
husband  attempts  to  convey  the  separate  property  of  the  wife,  the 
suit  should  be  brought  in  the  name  of  the  wife  alone,  the  husband 

O  * 

being  joined  as  a  defendant.6  In  a  suit  for  damages  to  the  wife's 
separate  property,  while  she  is  not  a  proper  party  plaintiff,  yet  the 
joinder  of  the  husband  and  wife  as  plaintiffs  is  not  reversible  error.7 
Where  a  married  woman  sues  for  damages  to  her  separate  property 
and  the  crops  growing  thereon,  the  husband  is  a  real  party  though 
it  is  stated  that  he  is  joined  only  pro  forma,  and  the  running  of  the 
statute  of  limitations  is  stopped  at  the  commencement  of  the  suit 

1 Norton  v.  Davis,  83  T.  32  (18  S.  W.  Rep.  430). 

2  Lyttle  v.  Harris,  2  U.  C.  21. 

»Ezell  v.  Dodson,  60  T.  331;  McGuire  v.  Glass,  4  App.  C.  C.,  §  54.  Money  the 
separate  property  of  the  wife  was  loaned  to  a  firm  and  was  used  in  its  business, 
of  which  firm  the  husband  was  a  member.  It  being  necessary  to  protect  her 
interest  that  legal  proceedings  be  taken,  such  proceedings  could  be  taken  by  the 
wife  alone  and  against  the  firm.  That  the  estate  or  interest  in  the  fund  sued 
for  held  by  the  wife  may  have  been  but  the  right  to  use  the  income  for  life 
would  not  be  an  obstacle  to  her  suing,  The  court,  if  necessary,  could  direct  the 
fund  to  be  paid  to  a  bonded  trustee  to  secure  the  disposition  of  it  under  the 
trusts  following  it  Martin  Brown  Co.  v.  Perrill,  77  T.  199  (13  S.  W.  Rep.  975). 

4  Tex.  &  Pac.  Ry.  Co.  v.  Medaris,  64  T.  92;  Overand  v.  Menczer,  83  T.  122  (18  S. 
W.  Rep.  301);  Cannon  v.  Hemphill,  7  T.  184;  Turnley  v.  Tex.  B.  &  I.  Co.,  54  T. 
451. 

5  Hartley  v.  Frosh,  6  T.  208;  Cannon  v.  Hemphill,  7  T.  184, 
*  McKay  v.  Treadwell,  8  T.  176. 

7  Lee  v.  Turner,  71  T.  264  (9  S.  W.  Rep.  149).  The  wife's  children  by  a  former 
husband  are  not  necessary  parties.  St.  L.,  A.  &  T.  Ry.  Co.  v.  Ticer,  3  App.  C.  C., 
§  402.  If  a  telegraphic  message  was  in  fact  sent  for  the  benefit  of  plaintiff's 
•wife,  and  she  was  damaged  by  the  negligence  of  the  telegraph  company,  the 
husband  had  the  right  to  sue  for  such  damages,  regardless  of  the  question  by 
whom  or  by  what  authority  the  message  was  sent.  W.  U.  Tel.  Co.  v.  Adams, 
75  T.  531.  The  husband  may  sue  in  such  a  case,  although  the  notice  of  the 
claim  for  damages  was  given  by  the  wife.  W.  U.  TeL  Co.  v.  Kinsley,  8  Civ. 
App.  .VJ7. 


§  154.]  PAK  171 

that  part  of  the  recovery  which  would  be  community  prop- 
erty. Tin- statute  does  not  continue  to  run  until  an  amendment 
making  tin-  husband  a  real  party.1 

The  husband,  as  the  representative  of  the  community, may  alone 
sue  for  and  collect  any  claim  due  to  the  community  estate  of  him- 
self and  wife,  and  a  judgment  in  his  favor  or  against  him  in  such 
suit  will  bind  the  wife  as  fully  as  she  could  be  bound  hud  she  been 
a  party  to  tin-  action.2  The  husband  is  the  only  necessary  or  proper 
party  in  a  suit  to  recover  damages  for  the  wrongful  seizure  under 
sequestration  of  the  community  property.8  Such  property  as  is  ac- 
«|iiiivd  during  marriage  by  reason  of  a  personal  trespass  committed 
on  the  wife  belongs  to  the  community.  For  its  recovery  the  hus- 
band may  sti*-.  and  the  wife  is  ordinarily  neither  a  proper  nor  nec- 
y  party.4  In  actions  to  recover  money  which  will  be  community 
property  when  realized,  the  wife  is  not  ordinarily  a  necessary  or 
proper  party.  A  judgment  will  not  be  reversed  for  every  erro- 
neous ruling,  but  only  when  the  opposite  party  is  injured  by 
such  ruling.  And  a  party  could  not  be  injured  by  the  improper 
joinder  of  the  wife,  since  a  judgment  in  favor  of  husband  and 
wife  is  a  bar  to  any  subsequent  claim  set  up  by  either.  If  excep- 
tions be  taken  in  the  court  below,  based  on  the  misjoinder  of  hus- 
band and  wife  as  plaintiffs,  when  the  wife  is  not  a  necessary  or 
proper  party,  and  an  injury  be  shown  to  defendant  as  a  result 
thereof,  the  overruling  of  the  exception  would  be  cause  for  re- 
versal.5 

1 G.,  C.  &  S.  F.  Ry.  Co.  v.  Jones,  3  App.  C.  C.,  §  21. 

2  Jordan  v.  Moore,  65  T.  363;  Gulf,  W.  T.  &  P.  Ry.  Co.  v.  Goldman,  28  S.  W. 
Rep.  I 

JEdrington  v.  NYwland,  ~n  T.  627. 

*T.  C.  Ry.  Co.  v.  Burnett,  61  T.  638. 

5  San  Antonio  St.  Ry.  Co.  v.  Helm,  64  T.  147;  Tex.  &  Pac.  Ry.  Co.  v.  Gwaltney, 
•J  A  [pp.  C.  C.,  §  684  Whether  the  fact  that  the  institution  of  a  suit  by  husband 
and  wife,  for  the  recovery  of  community  property,  would  be  erroneous  or  not, 
when  no  injury  thereby  is  shown  by  a  defendant  against  whom  they  recovered 
judgment,  it  will  not  be  sufficient  to  authorize  a  reversal  when  the  question  is 
raised  for  the  first  time  in  the  appellate  court.  A  judgment  recovered  in  such 
a  suit  would  l»e  binding  on  the  husband.  Hackworth  v.  English.  W  T.  1s*. 
An  action  to  recover  damages  on  a  liquor-dealer's  bond  for  the  .-al<-  of  liquor  to 
ii  minor  should  be  brought  by  the  husband.  The  cause  of  action  is  community 
property.  Wartelsky  v.  McGee,  30  S.  W.  Rep.  69. 

Husband  and  wife  may  join  as  plaintiffs  in  an  action  for  damages  for  the 
wrongful  seizure  by  attachment  of  property  exempt  by  law  from  ion-ed  sale, 
Craddock  v.  Goodwin.  :A  T.  r.TS;  Cunningham  v.  Coyle,2  App.  C.  ( '..  $  m.  The 
abandonment  of  the  wife  by  the  husband  and  failing  to  contribute  to  her  sup- 
port, held  not  sufficient  to  authorize  her  to  sue  alone  on  a  In  juoi  -dealer's  bond. 
McGuire  v.  Glass,  4  App.  C.  C.,  §  54.  A  wife  who  was  trustee  holding  funds  for 
her  children  invested  the  proceeds  in  horses.  Her  husband  in  her  right  sued  a 
trespasser  for  taking  the  horses,  and  it  was  held  that  her  children  were  not  nec- 
essary or  proper  parties.  Millikin  v.  Smoot,  71  T.  759  (12  S.  W.  Rep.  59). 


172  PARTIES   TO   ACTIONS.  [§  154. 

Damages  recoverable  for  a  personal  injury  to  the  wife  are  com- 
munity property,  and  are  recoverable  at  the  suit  of  the  husband. 
The  exceptional  cases  in  which  the  wife  has  been  permitted  to  sue 
for  or  manage  the  community  property  are  those  where  the  husband 
has  abandoned  her  for  a  considerable  period  of  time,  leaving  her 
destitute  of  any  means  of  support  unless  she  resorted  to  community 
property.1  The  refusal  of  the  husband  to  become  a  party  to  an  or- 
dinary suit  to  recover  community  property  would  not  give  the  wife 
the  ri'o-ht  to  sue  alone  when  they  were  living  together  and  he  was 
exercising  rightful  control  over  the  common  estate.2  The  wife  has 
capacity  to  be  a  recipient  of  a  wrong  as  well  as  of  property,  the 
same  as  though  she  were  a  feme  sole;  and  if  she  be  slandered,  or  an 
assault  and  battery  be  committed  upon  her,  or  any  trespass  or  other 
actionable  wrong,  by  any  person  other  than  her  husband,  she  may, 
after  discoverture,  prosecute  alone  a  suit  against  the  wrong-doer  > 
whether  commenced  before  or  after  the  discoverture,  the  same  as 
though  she  had  been  sole  when  she  received  the  injury.  A  cause  of 
action,  the  foundation  of  which  is  a  tort  inflicted  upon  the  wife  by 
the  husband  and  another,  is  not  a  community  right,  but  is  a  separate 
right  of  the  wife;  and  damages,  if  recovered  in  a  suit  by  the  wife 
on  such  a  cause  of  action,  would  be  her  separate  property.3  Where, 
pending  a  suit  for  damages  for  her  son's  death,  the  mother,  a  widow, 
marries  a  second  time,  the  husband  is  a  proper  party  and  should  be 
made  party  on  suggestion  of  the  marriage.  The  proper  practice 
upon  the  marriage  of  a,  feme  sole  plaintiff  is  to  present  the  fact  by 
motion  or  suggestion  before  the  trial.  The  court  should  then  act.4 
On  suggestion  of  the  marriage  the  husband  may  make  himself  a 
party,  and  he  and  the  wife  may  prosecute  the  suit  as  if  they  had 
been  originally  plaintiffs.5 

1  Wright  v.  Hays,  10  T.  130;  Cheek  v.  Bellows,  17  T.  613;  Fullerton  v.  Doyle,  18 
T.  4;  Rice  v.  Railway  Co.,  8  Civ.  App.  130.    Where  the  wife  joins  the  husband 
in  a  suit  for  damages  to  the  community  and  dies,  her  children  need  not  be  made 
parties.    G.  W.,  T.  &  P.  Ry.  Co.  v.  Goldman,  8  Civ.  App.  257,  and  87  T.  567  (29 
S.  W.  Rep.  1062). 

2  Ezell  v.  Dodson,  60  T.  331;  Gallagher  v.  Bowie,  66  T.  265  (17  S.  W.  Rep.  407); 
W.  U.  TeL  Co.  v.  Cooper,  71  T.  507  (9  S.  W.  Rep.  598);  Tex.  &  Pac.  Ry.  Co.  v. 
Pollard,  2  App.  C.  C.,  §  481:  Rice  v.  Railway  Co.,  8  Civ.  App.  130. 

*  Nickerson  v.  Nickerson,  65  T.  281.  The  presumption  will  be  indulged  that 
the  wife  and  children  were  properly  made  parties  plaintiff  to  a  suit  instituted 
during  the  life  of  a  deceased  husband  and  father  to  recover  damages  for  an  in- 
jury inflicted  on  the  wife,  when  the  cause  of  action  survives.  Fordyce  v.  Dixon, 
70  T.  694  (8  S.  W.  Rep.  504).  Where  a  wife,  suing  on  a  cause  of  action  for  per- 
sonal injuries  not  reduced  to  judgment  before  her  husband's  death,  improperly 
sues  also  as  next  friend  of  her  children,  the  error  is  harmless,  since  the  judgment 
is  a  bar  to  any  further  demand.  Tex.  &  Pac.  Ry.  Co.  v.  Watkins,  26  S.  W.  Rep. 
760). 

«San  A.  St  Ry.  Co.  v.  Cailloutte,  79  T.  341  (15  S.  W.  Rep.  390). 

•R  &  1252. 


§•155.]  r.\Kin>    i»  A<  u< 

?'  155.  Husband  and  wife;  actions  against. 

The  husband  and  witV  must  \><>  jointly  sued  for  all  debts  con- 
•  •(1  l.y  the  wife  for  necessaries  furnished  herself  or  children, 
ami  for  all  expenses  \vliieh  may  have  been  incurred  by  the  wife  for 
the  benefit  of  her  separate  property.  They  must  also  be  jointly 
-in •' I  for  all  separate  debts  and  demands  against  the  wife;  but  in 
siu-h  case  no  personal  judgment  shall  be  rendered  against  the  hus- 
band.1 

The  wife  may  contract  debts  for  necessaries  furnished  herself  or 
children,  and  for  all  expenses  which  may  have  been  incurred  by  her 
for  the  benefit  of  her  separate  property,  and  if  the  court  iinds  that 
the  expenses  were  reasonable,  execution  may  be  levied  upon  the 
common  property,  or  upon  the  separate  estate  of  the  wife,  at  the 
retion  of  the  plaintiff.2 

"When  the  husband  has  abandoned  the  wife  and  is  a  fugitive  from 
justice,  the  wife  may  bring  and  defend  suits  alone  for  the  protec- 
tion of  herself  and  property.3  The  wife  may,  in  a  proper  case,  for 
the  protection  of  her  separate  rights,  maintain  a  suit  in  her  own 
namf  against  her  husband,  and  would  be  entitled  to  the  benefit  of 
writs  of  attachment,  sequestration,  injunction  or  any  like  writ  to 
which  any  other  creditor  would  be  entitled.4 

In  a  suit  against  husband  and  wife  on  their  joint  and  several 
note,  it  is  error  to  render  judgment  against  the  wife  without  aver- 
ments showing  that  the  debt  was  contracted  for  a  purpose  which 
could  fix  a  liability  upon  her.5  The  suit  may  be  brought  against 
the  husband  and  wife  jointly  on  their  joint  contract  executed  for 
the  benefit  of  the  wife's  separate  property.6  The  wife  is  a  proper 
party  to  a  suit  on  a  note  given  by  the  husband  and  wife  for  the 
purchase-money  of  property,  and  to  the  decree  foreclosing  the 
vendor's  lien  thereon;  but  it  is  error  to  render  judgment  against 
her  for  the  debt  or  costs,  when  there  was  nothing  to  create  a  liabil- 
ity on  her  separate  estate.7  The  wife  is  a  proper  party  to  a  suit  to 
foreclose  the  vendor's  lien  on  a  note,  given  by  her  husband  for  land 
deeded  to  her,  and  may  properly  be  included  in  the  decree  of  fore- 
closure, but  it  is  error  to  render  judgment  against  her  for  the  <lrlit 
or  for  costs.8  A  defendant  in  trespass  to  try  title,  in  possession  by 
virtue  of  his  wife's  claim  to  the  property,  has  no  right  to  suspend 

1 R  a  1201, 1202, 2970.  Article  1201  originally  read  maybe  jointly  sued.  P.  D. 
464a 

»R  S.  2970.  2971. 
»  Black  v.  Black,  62  T.  296. 

«  Ryan  v.  Ilyan.  tH.T.  473;  Price  v.  Cole,  85  T.  471;  Hall  v.  Hall,  52  T.  29& 
»Covingtons  v.  Burleson,  28  T.  368;  Trimble  v.  Miller,  24  T.  314. 
«Soiotridge  v.  LovHl.  :r.  T.  53;  Claiborne  v.  Tanner,  18  T.  68. 
•Linn  v.  Willis,  1  U.  C.  158. 
» Garner  v.  Butcher,  1  U.  C.  430. 


174:  PARTIES   TO   ACTIONS.  [§  155. 

proceedings  in  the  cause  until  his  wife  can  be  made  a  co-defendant. 
His  possession  by  virtue  of  his  wife's  claim  may  be  defended  with- 
out the  necessity  of  making  her  a  party.  Her  rights  would  not  be 
concluded  by  the  judgment,  and  the  disadvantage  which  might  re- 
sult from  her  non-joinder  as  a  defendant  would  affect  the  plaintiff 
alone.1  In  a  suit  for  debt  against  the  husband  the  wife  is  neither 
a  necessary  nor  proper  party  defendant  when  there  is  no  prayer  to 
subject  the  separate  property  of  the  wife  to  the  payment  of  the 
debt.-' 

A  judgment  against  the  husband  affecting  his  separate  estate  and 
the  community  property  would  bind  the  wife,  whether  she  was  a 
party  or  not.3 

The  wife  is  a  necessary  party  to  a  suit  to  subject  her  separate 
property  for  supplies  and  necessaries; 4  but  not  in  a  suit  brought  on 
the  joint  obligation  of  herself  and  husband,  unless  the  obligation 
charges  her  separate  estate.5  Whatever  may  be  the  nature  or  char- 
acter of  a  demand  against  a  married  woman,  it  is  a  well-settled  gen- 
eral rule  that  her  husband  must  be  joined  with  her  in  a  suit  upon 
it.  It  is  not  sufficient  to  show  as  an  excuse  for  failing  to  join  the 
husband  that  the  contract  is  valid,  and  such  a  one  as  a  married 
woman  may  make.6  The  husband  is  a  necessary  party  to  any  judg- 

1  Thomas  v.  Quarles,  64  T.  491. 

2  Walling  v.  Banning,  78  T.  580  (11  S.  W.  Rep.  547).    In  a  suit  to  enforce  a  lien 
on  land  to  secure  the  payment  of  a  note,  C.  was  sued  as  principal,  B.  as  surety ^ 
and  H.  as  indorser.     Judgment  by  default  was  taken  against  B.  and  H.,  and  a 
decree  entered,  first  subjecting  the  land  to  its  payment.    C.  answered,  and  his 
attorney  obtained  leave  to  make  C.'s  wife  a  party,  and  filed  a  separate  defense 
for  her,  claiming  the  land  as  separate  property,  and  that  it  was  a  homestead. 
Her  answer  was  stricken  out.    Afterwards  C.  and  wife  brought  suit  against  the 
plaintiff,  who  recovered  judgment  in  the  former  proceeding,  to  enjoin  and  va- 
cate the  decree  which  ordered  a  sale  of  the  land,  not  making  B.  and  H.  parties 
thereto,  and  obtained  judgment  vacating  so  much  of  the  former  judgment  as 
ordered  a  sale  of  the  land.     In  a  proceeding  by  B.  and  H.  to  enjoin  the  plaintiff 
in  the  first  action  from  enforcing  execution  against  them  a"s  original  surety  and 
indorser,  it  was  held:   (1)  B.  and  H.  were  not  affected  by  the  judgment  in  the 
second  suit,  to  which  they  were  not  made  parties.    (2)  If,  in  the  second  suit,  the 
original  plaintiff  and  C.  and  his  wife  consented  to  the  entering  of  a  decree 
whereby  the  first  judgment  was  vacated,  so  far  as  it  foreclosed  the  lien  on  the 
land,  and  B.  and  H.,  not  being  parties,  did  not  consent  thereto,  then  they  were 
relieved  from  liability  under  the  first  judgment  to  the  extent  of  the  value  of 
the  land.    (3)  If,  as  a  fact,  C.'s  wife  was  a  party  defendant  in  the  first  suit,  she 
was  concluded  by  the  decree  therein  to  the  extent  of  all  matters  that  might 
have  been  litigated  in  that  suit.    Henderson  v.  Terry,  62  T.  281. 

3  Thompson  v.  Jones,  12  S.  W.  Rep.  77.    See  Robinson  v.  McWhirter,  52  T.  202, 
where  it  was  held  that  in  a  suit  on  a  note  made  by  husband  and  wife,  and  to 
foreclose  a  vendor's  lien  on  land  the  deed  to  which  was  made  to  the  wife,  the 
wife  was  not  a  necessary  party. 

1  Milburn  v.  Walker.  11  T.  329. 

4  Shelby  v.  Perrin.  18  T.  51"). 

«  Carothers  v.  McNese,  43  T.  221. 


§  156.]  PARTIES   TO   ACTI'  1  T."> 

ment  rendered  against  the  wife.1  lie  must  be  joined  pro  forma  in 
a  suit  against  the  wife  for  debts  contracted  before  marriage,2  and 
the  community  is  liable  for  such  debts.8  The  husband  must  be 
brought  in  when  a,  feme  sole  defendant  marries  pending  the  suit.4 

§  156.  Surviving  husband  or  wife  and  heirs. 

The  surviving  husband  cannot  recover  alone  for  damages  caused 
to  the  community  estate;  his  children  are  tenants  in  common  with 
him  and  must  be  joined.  For  any  damage  he  may  sustain  to  his 
right  of  present  occupancy  he  may  recover.5  But  it  is  held  that 
where  it  does  not  appear  that  there  is  any  necessity  for  an  adminis- 
tration, and  there  is  none,  the  widow  alone  may  maintain  an  action 
to  recover  the  community  property  or  its  value,  without  joining 
children  of  the  deceased  husband.6 

A  telegram  was  sent  during  the  life-time  of  the  husband.  Suit 
for  damages  for  its  non-delivery  was  instituted  after  his  death  by 
his  wife,  and  it  was  held  that  after  the  husband's  death  the  surviv- 
ing wife  is  placed  by  law  in  most  respects  in  the  attitude  of  a  sur- 
viving partner,  and  until  an  administration  is  opened  upon  the  estate 
she  may  maintain  suit  to  collect  and  preserve  the  community  estate. 
The  suit  was  properly  brought.  The  widow  does  not  occupy  to  the 
community  estate  the  relation  of  an  heir,  nor  are  her  rights  and 
]><>\\<>rs  derived  from  the  deceased  by  inheritance,  but  originate  in 
the  acquisition  of  the  community  property  under  the  laws  l>y  which 
the  title  and  powers  of  the  husband  and  wife  are  defined.  Ordi- 

i  Steinback  v.  Weill.  1  App.  C.  C.,  §  935. 

ish  v.  George,  6  T.  234. 
'Taylor  v.  Murphy.  50  T.  291. 

*  Reed  v.  Cavitt,  30  S.  W.  Rep.  517. 

•  Rowland  v.  Murphy,  66  T.  534  (1  S.  W.  Rep.  658).    In  H.  &  T.  C.  Ry.  Co.  v. 
Kuapp.  ~>l  T.  V.i-,'.  the  surviring  wife  sued  for  injuries  to  the  homestead  and  the 

growing  thereon.  No  charge  was  asked  limiting  plaintiir's  recovery  for 
permanent  damages  to  the  land  according  to  her  estate  or  interest,  and  thus  ap- 
poitioning  the  damages.  As  she  was  at  the  time  of  the  overflows  not  only 
occupying  the  land  as  her  homestead,  with  the  right  to  so  continue  to  occupy 
it  .luring  her  life,  but  was  in  virtue  of  her  community  rights  the  owner  of  a 
half  interest  therein,  and  also  before  suit  brought  became,  by  partition,  the 
absolute  owner  in  fee,  the  court  did  not  feel  called  upon  to  inquire  wh.-thrr 
some  part  of  the  damages  might  not  have  been  deducted  I.. .  au-«-  of  tin-  ii 
of  others  in  the  land.  See,  also,  Int  &  G.  X.  Ry.  Co.  v.  TiniiH.-rni.iii.  til  T.  660. 
.  C.  &  S.  F.  Ry.  Co.  v.  Jones,  3  App.  C.  C..  S  15.  it  is  held  that  the  sur- 
viving widow,  as  the  head  of  a  family,  is  entitled,  during  her  life-time,  to  tin- 
exclusive  possession  and  enjoymi-nt  of  the  hoim-*tcad.  and  may  maintain,  in 
her  own  name  and  right,  an  action  to  recover  damages  to  such  homestead  or 
the  crops  growing  thereon,  and  that  the  surviving  children  of  the  deceased  an- 
not  necessary  parties  plaintiff, —  overruling  Mo.  Pac.  Ry.  Co.  v.  Teagur.  'J  App. 
C.  C.,  p.  685. 

•Chambers  v.  Ker,  6  Civ.  App.  373  (24  S.  W.  Rep.  1118);  Walker  v.  Abercrum- 
bie,  61  T.  69. 


176  PARTIES    TO   ACTIONS.  [§  156. 

narilv,  hoirs  cannot  sue  upon  a  cause  of  action  which  accrues  to  an 
amvstor,  but  suit  must  be  brought  by  an  administrator  or  executor. 
( 'hildren  of  the  husband  inherit  his  half  of  the  community  property, 
subject  to  the  wife's  control  for  the  payment  of  community  debts; 
sin-'  is  trustee  for  the  heirs,  and  judgments  for  or  against  her  are 
binding  on  them.  If  an  administration  was  pending,  it  was  incum- 
bent on  defendant  to  plead  and  prove  it;  and  inasmuch  as  the  facts 
allied  showed  a  right  of  action  in  the  plaintiff,  it  was  not  necessary 
to  determine  whether  an  administration  would  suspend  plaintiff's 
riuht  to  sue  or  not.1 

The  widow's  right  to  manage  the  community  ceases  with  her 
marriage.  As  payee  of  a  note  made  for  land  sold  by  the  com- 
munity, in  suing  for  foreclosure  of  vendor's  lien  after  her  second 
marriage,  her  children  were  necessary  parties.2  The  rule  as  to  the 
right  to  sue  for  community  property  is  thus  stated :  The  right  to 
sue  on  the  death  of  the  husband  is,  1,  in  the  administrator,  if  any ; 
2,  in  the  widow  on  showing  compliance  with  the  law  by  filing  bond 
and  inventory ;  or  3,  by  showing  no  administration  and  no  need  of 
one,  in  absence  of  debts  or  from  lapse  of  time,  in  which  case  the 
heirs  would  be  allowed  to  sue.3 

A  judgment  against  a  surviving  husband,  obtained  in  a  suit  upon 
a  community  debt,  which  is  begun  after  the  wife's  death,  is  bind- 
ing upon  the  community  property,  though  the  heirs  of  the  wife  are 
not  made  parties  and  the  pleadings  fail  to  allege  that  the  claim  is 
for  a  community  debt.  This  results  from  the  powers  and  obliga- 
tions of  the  husband  by  virtue  of  his  position  as  head  of  the  marital 
partnership.4  But  where  the  heirs  have  reduced  the  interest  of 
their  deceased  mother  to  possession,  a  suit  by  creditors  on  a  com- 
munity debt,  against  the  surviving  husband  alone,  will  not  affect 
the  rights  of  the  heirs.5  Though  the  administrator  of  a  deceased 
husband's  estate  has  authority  to  maintain  a  suit  to  recover  land 
belonging  to  the  community  for  purposes  of  administration,  with- 

i W.  U.  Tel.  Co.  v.  Kerr.  4  Civ.  App.  280  (23  S.  W.  Rep.  564). 

2  Llano  Imp.  Co.  v.  Cross,  5  Civ.  App.  175  (24  S.  W.  Rep.  77);  Puckett  v.  John- 
son, 45  T.  550.  Though  cases  may  arise  in  which  a  surviving  wife,  who  has 
qualified  under  the  statute  to  administer  the  community  estate,  may  make  her- 
self a  party  to  a  suit  pending  for  or  against  her  husband  at  the  time  of  his 
<l--atli,  and  affecting  the  community  estate,  yet,  when  the  suit  is  against  the 
husband  as  assigne  under  the  statute  for  the  benefit  of  creditors,  no  such  right 
exists.  The  error  in  permitting  the  wife  to  make  herself  a  party  as  successor 
of  her  husband  in  a  statutory  trust  for  the  benefit  of  creditors,  and  rendering 
judgment  against  her,  is  such  as  requires  a  reversal  of  the  judgment  without 
an  assignment  of  error.  Woessner  v.  Crank,  67  T.  388  (3  S.  W.  Rep.  318). 

•Holland  v.  Seward,  1  App.  C.  C.,  §.944 

«  Carter  v.  Conner,  60  T.  52;  Gulf,  W.  T.  &  P.  Ry.  Co.  v.  Goldman,  87  T.  567 
(29  a  W.  Rep.  1062). 

4  Gentry  v.  Collins,  1  U.  C.  721. 


•  7.]  PARTIES   TO    ACT1  177 

out  joining  therein  the  heirs  either  of  the  deceased  husband  or  wife, 
still  a  judgment  against  him  in  such  suit  would  constitute  no  bar  to 
a  suit  by  the  heirs  of  the  mother  for  her  community  inter 

The  right  of  the  husband  to  the  control  of  community  property 
and  to  sue  for  and  recover  community  choses  in  action  does  not 
•:il  ii]K>n  the  existence  of  community  debt*.  In  suits  for  dam- 
to  the  freehold,  where  the  present  right  of  future  possession 
of  the  heirs  is  involved,  it  has  been  held  that  he  could  only  recover 
for  injury  to  his  present  right  of  occupancy,  and  that  the  right  of 
the  heirs,  not  being  a  community  claim,  would  not  be  affected; : 
but  as  respects  community  claims,  the  husband  has  the  sole  power 
to  bind  the  community,  and  is  alone  bound  by  contracts  relating 
thereto,  and  it  is  held  that  his  power  should  be  extended  so  as  to 
give  him  the  right  to  sue  for,  collect,  and  preserve  the  community 
estate  in  trust  for  himself  and  others  interested,  as  creditors  or 
otherwise,  subject  to  be  controlled  by  a  court  of  equity  when  nec- 
essary to  protect  the  beneficiaries.1 

§  167.  Suits  by  executors,  etc. 

Suits  for  the  recovery  of  personal  property,  debts  or  damages, 
and  suits  for  title  or  for  the  possession  of  lands,  or  for  any  right 
attached  to  or  growing  out  of  the  same,  or  for  any  injury  or  dam- 
age done  thereto,  may  be  instituted  by  executors,  administrators  or 
guardians  appointed  in  this  state,  in  like  manner  as  they  could  have 
been  by  their  testator  or  intestate.  The  judgment  in  such  cases  is  as 
conclusive  as  if  rendered  in  favor  of  or  against  the  testator  or  intes- 
tate; but  it  may  be  set  aside  by  any  person  interested  for  fraud  or 
collusion  on  the  part  of  the  executor  or  administrator.4 

The  administrator  may  bring  and  maintain  suits  for  lands  belong- 
ing to  his  intestate's  estate  without  joining  the  heirs.*  It  was  de- 
cided at  an  early  day,  from  the  general  authority  intrusted  to  an 
Administrator  by  the  probate  laws,  that  he  could,  without  the  heiis 
being  joined  with  him,  bring  and  defend  suits  for  land  to  protect 
the  interests  of  the  estate.8  But  it  is  said  that  this  rule  was  changed 
by  the  probate  act  of  1370,  which  required  that  the  heirs  should  be 
made  parties  when  the  title  to  land  was  affected  by  the  recovery 

1  Rudd  v.  Johnson,  60  T.  91. 

*  Rowland  v.  Murphy,  66  T.  534  (1  a  W.  Rep.  654). 

•Gulf,  W.  T.  &  P.  Ry.  Co.  v.  Goldman,  87  T.  567  (29  a  W.  Rep.  1062;  8  Civ. 
App.  2.J7),  citing  Moody  v,  Smoot,  78  T.  119  (14  a  W.  Rep.  285).  A  widow  may 
sue  a  telegraph  company  for  damages  for  mental  suffering  caused  by  failure  to 
deliver  a  telegram,  whereby  she  was  prevented  from  seeing  her  husband  before 
he  died.  The  suit  is  not  for  the  recovery  of  community  property,  but  if  it  were, 
she  could  maintain  it  as  survivor.  W.  U.  TeL  Co.  v.  Kelly,  29  a  W.  Rep.  408. 

«R.a  111)7. 

»  Graham  v.  Vining,  2  T.  43;  Howard  v.  The  Republic,  2  T.  31L 

«  Guilford  v.  Love,  4!>  T. 


178  PARTIES   TO   ACTIONS.  [§  157. 

in  the  suit.1  It  is  now  provided  by  article  1198  of  the  Revised  Stat- 
utes that  in  every  suit  against  the  estate  of  a  decedent  involving 
tin.'  title  lo  real  estate,  the  administrator  and  heirs  shall  be  joined; 
and  whatever  may  have  been  prescribed  by  the  law  referred  to,  it 
seems  to  be  the  rule  now  that  the  heirs  are  not  necessary  parties.2 
An  executor  or  administrator  may  maintain  a  suit  to  remove  cloud 
fr«>m  title  to  land  owned  by  the  heir  without  joining  the  heir  as  a 
partv,  and  the  judgment  rendered  will  conclude  the  heir  in  the  ab- 
sence of  fraud  and  collusion.  This  is  by  virtue  of  the  statute  at  the 
Ix-ail  of  this  section;  but  article  1198  of  the  Eevised  Statutes  is 
equally  explicit  in  requiring  that  the  heir  shall  be  made  a  party  de- 
fendant to  any  suit  brought  against  the  estate  involving  title.3 

Though  the  legal  representative  of  a  deceased  person's  estate  is 
the  proper  party  to  bring  suit  for  the  recovery  of  a  debt  due  the 
estate,  since  this  rule  has  its  foundation  in  the  necessity  of  protect- 
ing the  creditors  of  the  estate,  it  does  not  exist  for  the  benefit  of 
debtors,  and  is  subject  to  exceptions.  The  legal  representative  is 
entitled  to  the  property  of  the  estate  only  in  a  qualified  manner 
and  for  a  specific  purpose;  for  all  other  purposes  the  title  is  in  the 
heir  from  the  moment  descent  is  cast.  When  after  three  years  had 
elapsed  since  the  death  of  the  intestate,  whose  estate  was  alleged 
to  have  been  insolvent,  and  during  which  time  no  one  had  applied 
for  administration  thereon,  the  surviving  widow  brought  an  action 
of  debt  on  a  judgment  which  was  the  community  property  of  her- 
self and  of  her  deceased  husband,  and  which  was  rendered  nearly 
seven  years  before  his  death,  it  was  held  that,  under  the  facts  stated, 
the  surviving  widow  could  maintain  the  action.  Independent  of 
the  special  facts  of  the  case,  the  wife,  as  survivor  of  the  community 
estate,  could,  being  the  owner  of  the  judgment  rendered  in  the  life- 
time of  her  deceased  husband,  preserve  the  debt,  against  which 
limitation  was  nearly  complete,  by  an  action  in  her  own  name.4 

•Gunter  v.  Fox,  51  T.  383. 

2Zacharie  v.  Waldron,  58  T.  116;  Russell  v.  Railway  Co.,  63  T.  646  (5  S.  W.  Rep. 
686). 

'  Russell  v.  Railway  Co.,  68  T.  646  (5  S.  W.  Rep.  686). 

4  Walker  v.  Abercrombie,  61  T.  69;  Evans  v.  Oakley,  2  T.  185.  In  a  suit  for 
land  which  has  been  devised  it  is  not  necessary  that  the  heirs  be  made  parties; 
it  is  sufficient  if  the  executor  and  the  devisees  be  made  parties.  Luffkin  v.  Gal- 
veston,  73  T.  340  (11  &  W.  Rep.  340).  In  a  suit  by  the  holder  of  title  under  heirs, 
the  defense  was  a  decree  in  a  suit  in  the  district  court  rendered  in  1868,  the  ad- 
ministrator being  a  party;  the  heirs  were  not  parties.  It  was  held  that  the 
decree  against  the  administrator  divested  title  from  the  heirs.  Lawson  v. 
Kelley.  s  J  T.  r.T  (17  S.  W.  Rep.  717). 

The  petition  below  contained  the  following  allegation:  "John  C.  Gibbons  and 
C.  Scott,  executors  and  trustees  under  the  last  will  and  testament  of  E.  Gib- 
us, deceased,  plaintiffs,  complaining  of,  etc represent  that  on  the 

day  of  January,  1883,  plaintiffs  were  lawfully  seized  and  possessed  of  the 
f  land  hereinafter  described,    .    .    .    holding  the  same  in  fee-simple  [do 


•>.]  PAi: 

AVherc  there  is  a  pending  administration  on  an  estate,  the  heirs 
cannot  sue  alone  to  recover  real  or  personal  property  which  would 
-ets  in  the  hands  of  the  administrator  for  the  payment  of  debts. 
If  there  is  ai  of  interest  in  the  estate  which  belongs  to  the 

heirs  by  inheritance,  and  which  would  not  be  assets,  they  may  sue 
J'or  it.1 

i  58.  Suits  for  land  against  decedents. 

In  every  suit  against  the  estate  of  a  decedent  involving  the 
title  to  real  estate,  the  executor  or  administrator,  if  any,  and  the 
heirs,  must  be  made  parties  defendant.2  The  heirs  are  necessary 
parties  in  suits  under  this  article.3  It  is  held  that  the  above  article 
applies  to  suits  in  which  the  title  of  the  estate  to  land  is  brought 
in  controversy,  and  not  to  such  as  merely  seek  to  enforce  a  li  vi 
upon  it.  The  heirs  are  not  necessary  parties  to  a  suit  br<> 
airainst  an  independent  executor  by  a  lien  creditor  to  enforce  his 
lien  against  the  land  of  the  estate.4 

"\Vhen  affirmative  relief  is  asked  by  a  defendant  in  a  suit  for  land 
brought  by  an  administrator,  the  defendant  becomes  a  plaintiff  to 
the  extent  of  such  relief,  in  which  case  the  heirs  of  the  estate  suing 
must  be  made  parties.  A  judgment  against  the  administrator  alone 
does  not  conclude  an  heir  to  land,  title  to  which  may  have  been 
litigated  in  a  suit  in  which  the  administrator  was  defendant  in  the 
litigation.5  Heirs  and  devisees  are  necessary  parties  to  a  suit  to 
establish  a  right  of  way  across  the  land  of  a  deceased  person. t; 

In  considering  the  necessity  of  joining  the  heirs  in  suits  by  and 
against  administrators  and  executors,  reference  is  frequently  had 
to  the  probate  law  of  1876,  without  any  reference  to  articles  1197 
and  1198  of  the  Revised  Statutes.7  And  it  is  held  that  on  an  appli- 

scribing  it].  That  afterward  .  .  .  defendants  entered  upon  said  premises," 
ft<\  From  this  it  is  shown  that  the  plaintiffs  were  suing  in  their  own  right  and 
not  as  executors  or  trustees.  Roundtree  v.  Stone,  81  T.  209  (16  S.  W.  Rep.  1035). 

i  Putnam  v.  Young,  57  T.  461. 

2R.S.  1198. 

•  Russell  v.  Railway  Co..  68  T.  646  (5  a  W.  "Rep.  686). 
«  Howard  v.  Johnson,  69  T.  655  (7  a  W.  Rep. 

4  East  v.  Dugan,  79  T.  329  (15  S.  W.  Rep.  27.", . 

•  Dwyer  v.  Olivari,  16  S.  W.  Rep.  800.    In  an  action  to  quiet  title   plaintiff 
.  claimed  title  under  a  deed  of  two  hundred  and  fifty  acres  undivided  inter 

a  survey  of  fourteen  hundred  and  fifty-two  acres  of  land,  and  a  parol  partition 

of  a  specific  two  hundred  and  fifty  acre  tract.     Defendants  denied  tin-  partition 

and  claimed  under  deed  from  the  same  grantor  of  twelve  hundred  and  two  acres 

undivided  interest  in  the  same  land.     It  was  held  that  after  plaintiff  withdrew 

his  claim  for  any  excess  of  fourteen  hundred  and  fifty-two  acres  in  tin-  Mirv.-y. 

-sue  lay  between  him  and  defendants  only,  and  }\>  ...n  grantor 

oilier  than  the  parties  in  the  suit  were  not  necessary  p  u  • .  l     Doll  v.  Mun'line, 

\V.  !{..,).  \,,p.  96). 


ISO 


PARTIES   TO   ACTIONS.  [§§  159,  160. 


cation  for  an  order  of  sale  under  a  decree  against  an  administrator 
loivelosing  a  vendor's  lien,  the  heirs  are  not  necessary  parties.1 
Also  in  suits  against  an  estate  by  the  holder  of  a  title  bond.2 

§  169.  Survivor  and  representative. 

A  surviving  partner  or  joint  obligor,  and  the  representatives  of 
the  deceased  partner  or  joint  obligor,  may,  as  a  general  rule,  be 
joined  as  defendants  in  the  same  suit.  And  the  surviving  obligor 
might  in  the  same  suit  obtain  any  relief  to  which  he  is  entitled 
against  his  co-defendant ;  as,  when  he  has  signed  a  note  as  surety, 
he  might  be  subrogated  to  the  rights  of  the  plaintiff,  the  debt  stand- 
ing for  his  benefit,  as  established  against  the  estate.3  And  so, 
\\licre  one  of  two  joint  defendants  dies  pending  the  suit,  the  exec- 
utors of  the  deceased  defendant  may  be  made  parties,  and  the  judg- 
ment of  the  court  be  rendered  against  all  the  defendants  jointly, 
with  an  order  that  execution  should  issue  against  the  surviving  de- 
fendant, and  that  the  executors  should  pay  the  judgment  in  due 
course  of  administration.4 

Suit  pending  at  the  death  of  the  intestate  may  be  prosecuted 
against  the  administrator ;  and  the  judgment  is  a  preferred  claim 
over  those  of  the  same  class  not  presented.5  In  a  suit  on  an  exec- 
utor's bond,  where  one  of  the  principals  and  one  of  the  sureties  are 
dead,  the  principal  surviving  cannot  object  to  the  non-joinder  of  the 
legal  representatives  of  the  deceased  executor  or  surety.6 

§  160.  Heirs;  suits  by  and  against. 

The  general  rule  is  that,  while  administration  is  pending  on  an 
estate,  a  suit  for  the  recovery  of  the  property  of  the  estate  should 
be  brought  by  the  administrator.  To  this  rule  the  following  ex- 
ceptions exist,  viz. :  1.  When  the  administrator  cannot  or  will  not 
act  for  the  protection  erf  those  beneficially  interested.  2.  When 
land  adversely  possessed  by  those  claiming  under  the  administrator, 
through  deeds  made  in  his  individual  and  representative  capacity, 
is  sued  for  by  the  heirs  or  those  claiming  under  them.  In  such  case 
the  interest  of  the  administrator  would  be  antagonistic  to  those 
claiming,  and  he  could  not  move  as  a  plaintiff  in  a  suit  in  their  be- 
half.7 Heirs,  in  order  to  be  entitled  to  sue  for  a  claim  of  their  an- 

i  Heath  v.  Garrett,  50  T.  264. 

*Guilford  v.  Love,  49  T.  715. 

1  Henderson  v.  Kissam,  8  T.  46.  But  in  order  to  authorize  the  joinder  of  the 
representatives  of  a  deceased  obligor,  it  must  appear  that  the  claim  has  been 
presented  and  rejected.  Wiley  v.  Pinsou,  23  T.  486. 

*  Bennett  v.  Spillars,  7  T.  600.    When  the  defendant  dies  pending  the  suit,  it  is 
not  necessary  to  present  the  claim.    Boone  v.  Roberts,  1  T.  147. 

•  Converse  v.  Sorley,  39  T.  515. 

8  Stephenson  v.  McFaddin,  42  T.  323. 
7  Rogers  v.  Kinnard,  54  T.  30. 


•'•').]  I'AIITIES    TO   ACTIONS.  1M 

r,  must  prove  some  fact  bringing  them  \vithin  some  one  of  the 

'(ions  to  the  rule;  as.  lu|»f  of  more  than  four  years  without 
administration,  or  that  administration  has  been  closed,  and  that 
there  are  no  debt*  against  the  estate.1  Th<-y  cannot  maintain  an 

!i  to  recover  property  of  the  estate  while  administration  is 
pending,  unless  there  are  no  debts  unpaid  against  the  estate  and  no 

-ity  for  administration,*    To  this  rule  an  exception  is  recog- 
d  where  suit  is  necessary  for  the  preservation  of  the  estate,' 
the  protection  of  the  heirs.4 

long  as  there  are  unpaid  debts  due  an  estate,  the  recovery  for 
an  injury  to  the  estate  would  be  assets  in  the  hands  of  the  admin- 
istrator and  suit  should  be  brought  in  his  name.  In  order  for  heirs 
to  maintain  a  suit  on  the  administrator's  bond,  they  must  show  an 
injury  to  them  as  heirs.  If  there  are  creditors  whose  claims  might 
ali-orb  the  estate,  the  injury  is,  prirna  facie  at  least,  to  the  estate 
and  to  the  creditors,  and  not  to  the  heirs.3 

Title  to  the  property  of  an  estate  vests  in  the  heirs,  where  the  es- 
icant,  by  the  removal  of  the  administrator,  no  debts  re- 
maining unpaid  by  the  estate,  and  they  may  sue  and  be  sued  in 
relation  thereto.8  Upon  a  defendant  dying  in  a  proceeding  to  re- 
vive a  money  judgment,  the  legal  representatives  are  necessary 
parties;  and  the  heirs  are  only  proper  parties  in  such  suit  wlu-iv 
there  is  shown  to  be  no  administration  nor  need  of  one.7  The  ob- 
jection that  the  petition  of  one  who  sues  as  heir  does  not  show- 
that  there  was  no  administration,  and  no  necessity  for  administra- 
tion, cannot  be  taken  by  a  motion  in  arrest  of  judgment;  nor  is  such 
objection,  if  properly  taken,  valid,  when  the  object  of  the  suit  is  to 
cancel  the  conveyance  or  unauthorized  will  of  the  deceased.8  Ileh  » 

1 Webster  v.  Willis,  56  T.  468. 

-  Northcraft  v.  Oliver,  74  T.  162  (11  a  W.  Rep.  1121). 

»  Richardson  v.  Vaughan,  86  T.  93  (22  &  W.  Rep.  1112).    After  the  lapse  of  a 

interval  since  any  action  hail  been  taken  in  an  administration,  which  was 

formally  closed,  though  unpaid  claims  existed  against  the  estate,  suit  was 

brought  by  the  heirs  to  recover  the  property  of  the  estate,  and  it  was  held  that 

ould  not  maintain  the  action.  Northcraft  v.  Oliver,  74  T.  162  (11  S.  W.  Rep. 

11-J1). 

*  Lee  v.  Turner,  71  T.  264  (9  a  W.  Rep.  149),  citing  Rogers  v.  Kinnard,  54  T.  30: 
(ii.  l.lings  v.  Steele,  28  T.  748;  Saunders  v.  Devercaux,  23  T.  Sup.  12. 

'Pevelerv.  Pevekr  This  was  a  suit  by  heirs  against  an  a<lmini- 

trator  on  his  bond,  and  it  was  alleged  that  there  was  "no  pending  administra- 
tion on  the  estate,  the  administration  of  defendant  having  been  closed  by  his 
removal."  The  evidence  showed  unsettled  claims  and  a  pending  admini>t  ra- 
tion, and  it  was  held:  1.  The  heirs  prima  facie  could  not  maintain  tho  suit. 
2.  The  defendants  were  not  required  to  plead  in  abatement  the  non-joinder  of 
th»-  administrator.  :5.  The  case  was  one  in  which  tho  evidence  negatived  tho 
right  of  action  claimed. 

.ird's  Hrirs  v.  Ward.  1  I*.  < '.  : 

Mill.-r.  71  T.  103  (8  a  W.  Rpp.  638). 

«Veal  v.  Portion,  57  T. 


182  PARTIES   TO   ACTIONS.  [§  ICO. 

are  not  proper  parties  in  a  suit  against  an  administrator  to  estab- 
lish a  claim  against  an  estate;  but  their  joinder  is  not  ground  for 
reversal  where  the  judgment  is  entered  against  the  estate  alone.1 
Whore  suit  is  brought  by  one  heir  against  the  executor,  any  adjust- 
ment or  settlement  made  will  not  bind  the  other  heirs.2  All  per- 
sons claiming  by  inheritance  under  a  named  ancestor  are  concluded 
a  judgment  against  his  unknown  heirs,  whether  claiming  imme- 
1  lately  from  him,  or  as  successors  of  those  so  inheriting.3 

1  Jenkins  v.  Cain,  12  S.  W.  Rep.  1114 

In  an  action  by  an  administrator  de  bonis  non  against  his  predecessor  and 
his  sureties  in  the  district  court  to  recover  certain  suras  of  money  and  notes 
and  rents  alleged  to  have  been  received  by  the  defendant  and  by  him  appropri- 
ated, the  answer  of  the  sureties  alleged  that  their  principal  had  paid  and  ad- 
vanced to  the  heirs  various  sums,  which  were  itemized,  and  that  the  heirs  were 
solvent,  as  was  also  the  estate.  It  was  held  proper  that  the  heirs  who  had  re- 
ceived the  advancements  should  be  made  parties  at  the  request  of  the  sureties 
pleading  advancements  by  their  principal  to  the  heirs.  Oglesby  v.  Forman,  77  T. 
047  (14  S.  W.  Rep.  244).  Suit  was  brought  against  a  widow  and  children  (some 
minors,  represented  by  their  guardian)  upon  a  judgment  against  the  husband 
before  his  death.  The  widow  and  children  received  assets  from  which  liability 
existed.  Pending  suit  the  widow  died  intestate.  The  heirs  of  her  husband  and 
of  herself  were  the  same.  After  her  death  plaintiffs  amended,  stating  these 
facts,  and  that  there  was  no  administration  upon  her  estate.  It  was  not  alleged 
that  administration  was  unnecessary.  Trial  was  had  a  few  months  after  her 
death.  Upon  objection  that  proper  parties  were  not  made,  and  allegations 
showing  that  administration  was  necessary,  it  was  held  that  the  suit  could  not 
proceed  in  absence  of  administration  upon  the  estate  of  the  widow.  Judgment 
was  erroneous  without  joining  her  representatives.  Low  v.  Felton,  84  T.  378 
(19  S.  W.  Rep.  693). 

Plaintiff  sought  to  subject  to  the  payment  of  a  note  certain  property  claimed 
to  have  been  conveyed  by  a  deceased  maker  of  the  note  in  fraud  of  his  credit- 
ors, and  also  to  subject  the  proceeds  of  property  descended  to  the  maker's  heirs 
and  sold  by  them.  The  suit  was  brought  in  the  district  court:  afterwards  an 
administrator  was  appointed,  the  claim  sued  on  was  presented  to  and  accepted 
by  him.  and  approved  by  the  county  board,  and  it  was  held:  (1)  That  the  ac- 
:ice  and  approval  of  the  claim  constituted  it  a  judgment  against  the  es- 
tate, and,  ordinarily,  plaintiff  would  have  been  required  to  go  into  the  county 
court  to  obtain  satisfaction  of  it  (2)  The  administrator  was  the  proper  party 
to  sue  for  such  property  as  descended  to  the  heirs,  and  no  creditor,  pending  the 
administration,  could  sue  for  its  recovery.  (3)  The  property  so  conveyed  formed 
no  part  of  the  estate:  the  county  court  had  no  control  over  it,  and  plaintiffs 
(••mid  maintain  their  suit  in  the  district  court,  except  so  far  as  it  claimed  to 
property  descended  to  the  heirs  subjected  to  their  demand.  Hudson  v. 
Willis,  i;:,  T.  »;:>(>.  Where  in  absence  of  debts  and  of  an  administration  heirs  in- 
stitute suit  to  recover  upon  a  promissory  note  and  to  foreclose  a  mortgage  to 
secure  it  executed  to  their  ancestor,  a  petition  setting  out  the  facts,  the  execu- 
tion of  the  note,  and  the  mortgage  to  secure  it  by  the  defendant  to  the  ancestor 
of  the  plaintiffs,  with  date,  amount,  and  interest,  with  description  of  the  land 
iiiort^wd,  with  prayer  for  relief,  will  support  a  judgment  final  by  default  for 
the  plaintiffs.  Loungeway  v.  Hale,  73  T.  495  (11  S.  W.  Rep.  537). 

2  Thompson  v.  Shackleford,  6  Civ.  App.  121  (S4  S.  W.  Rep.  980). 

»R  S.  1236;  2  Pasch.  Dig.,  art.  5460;  Sloan  v.  Thompson,  4  Civ.  App.  419  (23 
8.  W.  Rep.  613). 


§§   161,  1C2.]  I'AKTIKS    TO    ACTI  183 

?  161.  Foreign  administrator. 

An  ox»vut<>r  or  administrator  cannot,  as  such,  maintain  a  suit  in 
one  state  l»y  virtue  of  letters  granted  in  another.1  A  suit  by  an 
administrator  cannot  be  maintained  in  Texas  by  virtue  of  letters  of 
administration  issued  from  the  probate  court  of  a  sister  state,  upon 
a  debt  belonging  to  the  estate  of  the  decedent,  where  the  title 
thereto  has  not  been  directly  vested  in  the  administrator,  as  when 
it  has  been  made  payable  to  him,  or  judgment  has  been  previously 
iivov.-ivd  in  his  name.-'  A  legatee,  under  a  foreign  administration, 
admitted  to  the  ownership  of  personal  property,  may  sue  here  in  his 
own  name  for  the  property  without  the  probate  of  the  will.  But 
he  must  show  that  he  is  entitled  to  sue  in  his  own  right,  and  not  in 
a  trust  or  representative  capacity.3  A  foreign  administrator  may 
assign  a  note  payable  to  the  intestate,  and  the  assignee  may  main- 
tain a  suit  upon  it.4 

§  162.  Partners;  actions  by  and  against. 

A  copartnership  must  sue  and  be  sued  in  the  names  of  the  part- 
ners, not  as  a  h'rm.  It  is  not,  unless  otherwise  provided,  considered 
person.  The  familiar  rule,  that  all  partners  who  are  jointly 
bound  upon  a  partnership  contract  must  be  joined  as  defendants  in 
a  suit  upon  it,  is  not  affected  by  articles  12^1  and  1347  of  the  Re- 
vised Statutes,  winch  provide  for  service  of  process.  Partnerships 
are  not  by  those  articles  invested  with  any  of  the  characteristics  of 
corporations,  nor  are  they  expressly  or  impliedly  authorized  to  sue 
or  be  sued  in  their  firm  names,  independently  of  their  members.5 

Suits  in  relation  to  the  business  of  a  limited  partnership  may  be 
brought  and  conducted  by  and  against  the  general  partners,  in  the 
same  manner  as  if  there  were  no  special  partners.6  As  a  general 
rule,  all  tin-  partners  must  join  to  recover  for  the  conversion  of 
partniT>hip  property.  But  one  partner  cannot  defeat  the  rights  of 
the  copartner  by  refusing  to  join  in  the  suit,  and  where  he  so  re- 
1'iiM-s  his  name  may  in  some  cases  be  used  against  his  consent.7  It 
is  held  that  where  one  of  two  surviving  partners  refuses  to  join  in 

i  M..S,  l.y  v.  Hurrow,  52  T.  396. 

*  Tenvfl  v.  (  nine,  55  T.  81;  Cobb  v.  Norwood,  11  T.  556;  Cheney  v.  Speight,  28 

;  Davis  v.  Phillips,  32  T.  564;  Summerhill  v.  MeAlexander,  1  App.  C.  C., 
1 084 

l«on  v.  Foster,  46  T.  618. 

M-ky  %.  National  Bank,  82  T.  244  (17  &  W.  Rep.  KKW);  Abercroml.i,'  v. 
Stillman.  77  T.  .>;»  ,  1 1  s.  \V.  Hep.  196);  Peterson  v.  Chemical  Bank.  :>>•>  N.  V.  jc,. 
»  Frank  v.  Tatum.  >7  T.  -J<U  rJ~»  S.  \V.  Rep.  409).     A  suit  in  the  name  of  J.  M. 
Pury.-ar  will  U-  regarded  as  a  suit  by  Puryear  alone,  and  not  in  behalf  of  the 
partnership,  though  the  firm  name  be  J.  M.  I'uryear.    A  firm  cannot  sue  by  the 
tirm  name.     H..u-hton  v.  I'ury.-ar.  :!'>  S.  \V.  Rep.  58& 
«R.  S.  3v 

•  Barker  v.  Abbott,  2  Civ.  App,  147  (21  a  W.  Rep.  72). 


PARTIES   TO   ACTIONS.  [§  163. 

a  suit  on  a  note  he  may  be  made  a  defendant,  and  thus  be  concluded 
l.v  tlu-  judgment.1  One  partner  who  makes  a  contract  for  the  ship- 
ment of  property  may  sue  alone  for  injury  to  the  property.3  One 
coming  into  a  partnership  after  a  contract  is  made,  and  retiring  and 
releasing  his  interest  before  a  suit  is  brought  on  the  contract,  is  not 
a  necessary  party.3 

Dormant  partners  may  join  in  suits,  but  they  are  not  necessary 
parties  in  suits  on  contracts  or  concerning  partnership  property.4 
It  is  said  that  the  rule  is  subject  to  exceptions.5 

An  a \vard  made  to  a  copartner  for  work  done  by  the  firm  may 
be  sued  upon  by  such  copartner  alone.6  To  authorize  a  partner  to 
sue  alone  for  the  value  of  partnership  goods  wrongfully  taken,  his 
right  to  recover  the  entire  damages  must  be  pleaded  and  proved.7 

§  163.  Surviving  partners. 

On  the  death  of  a  partner  pending  suit  brought  in  the  firm  name, 
it  is  not  necessary  to  make  the  legal  representatives  of  the  deceased 
partner  a  party.8  Service  having  been  made  upon  one  of  two  part- 
ners, and  thereafter  the  partner  served  having  died,  and  the  plaint- 
iffs having  by  supplemental  petition  suggested  the  death  and  pro- 
cured service  upon  the  other  partner,  with  prayer  for  judgment 
against  the  partnership  and  the  partner  last  served,  the  heirs  of  the 
deceased  partner  were  not  necessary  parties,  since  judgment  was  not 
sought  against  them,  nor  against  the  estate  of  the  deceased  partner. 
The  fact  that  the  surviving  partner  had  not  been  originally  served, 

1  Hines  v.  Dean,  1  App.  C.  C.,  §  692. 

*  Mo.  Pae.  Ry.  Co.  v.  Smith,  84  T.  348  (19  S.  W.  Rep.  509). 

'Maverick  v.  Maury,  79  T.  435  (15  S.  W.  Rep.  686).  And  the  rule  holds  where 
one  merely  comes  into  the  partnership  after  the  contract  is  made.  Gill  v.  Bickel, 
80  a  W.  Rep.  919. 

B.  &  Co.,  of  which  firm  one  C.  was  a  silent  partner,  were  contractors  with  the 
city  of  Dallas  for  building  a  city  hall.  The  contractors  sublet  a  part  of  the  work 
to  L.  Dispute  having  arisen  between  L.  and  the  contractors  they  submitted  the 
matter  to  arbitration,  C.  acting  for  the  contractors'  firm,  B.  &  Co.,  and  claiming 
to  own  the  balance  due  on  the  contract.  The  agreement  to  arbitrate  authorized 
the  payment  by  the  city  according  as  the  award  should  determine.  An  award 
\VM-  made  and  suit  was  brought  by  L.  against  the  city  and  B.  &  Co.,  for  the 
amount  of  the  award,  or  so  much  of  it  as  was  owing  upon  the  contract.  No 
service  was  had  upon  C.,  and  the  city  asked  a  continuance  in  order  that  C.  might 
be  served  with  citation.  This  was  refused,  and  it  was  held  there  was  no  error, 
there  being  no  contest  about  the  validity  of  the  award,  and  that  C.,  by  signing 
the  agreement  to  arbitrate  for  his  firm,  was  estopped  to  contest  it.  City  of  Dal- 
las v.  Loonie,  83  T.  291  (18  S.  W.  Rep,  726). 

4  Speak  v.  Prewitt,  6  T.  252;  Jackson  v.  Alexander,  8  T.  109;  Garrett  v.  Muller, 
87  T.  589;  Keesey  v.  Old.  3  Civ.  App.  1;  Boehin  v.  Calisch,  3  S.  W.  Rep.  293. 

'Keesey  v.  Old,  3  Civ.  App.  1  (21  S.  W.  Rep.  693). 
(Jill  v.  Hirkel,  30  S.  W.  Rep.  919. 

'•  Houghton  v.  Puryear,  30  S.  W.  Rep.  583. 

»  Duntuan  v.  Coleinan,  59  T.  199. 


§  163.]  PARTIES   TO   ACTI'  1  ^("> 

and  that  she  had  not  been  joined,  did  not  deprive  plaintiffs  of  tlr>ir 
right  to  make  her  a  party  after  the  death  of  the  othor  partner,  and 
to  prosecute  their  claim  against  her  and  the  partnership  assets,  sho 
having  the  capacity  to  represent  both  for  such  purposes.1 

In  an  action  airainst  a  surviving  partner  for  a  firm  debt,  the  ex- 
ecutors of  the  deceased  partner  are  not  necessary  parties,  since  the 
dissolution  of  the  firm  by  the  death  of  such  deceased  partner  did 
not  affect  the  liability  of  the  surviving  partner.  Nor  in  such  action 
arc  the  executors  of  the  deceased  partner  proper  parties,  since  as  to 
them  the  creditor  can  pursue  his  remedy  only  in  the  probate  court. 
In  such  action  execution  is  properly  awarded  against  the  partner- 
ship assets,  despite  the  fact  that  the  surviving  partner  may  have 
delivered  them  over  to  the  executor  of  the  deceased  partner,  since 
he  could  not  lawfully  surrender  their  possession  and  control  to  the 
prejudice  of  firm  creditors.2 

Before  the  introduction  of  the  common  law,  in  a  suit  on  a  note 
made  to  two  partners,  and  to  foreclose  a  mortgage,  it  was  proper 
to  join  the  representative  of  a  deceased  partner  with  the  survivor.3 
It  is  held  that  a  surviving  partner  or  joint  obligor  may  be  joined  as 
defendant  witli  the  representatives  of  the  deceased  partner  or  joint 
obligor.4  But  it  is  said  that  the  rule  is  well  settled  that  a  surviving 
partner  may  sue,  as  such,  to  recover  a  debt  due  the  firm,  without 
ji  lining  in  such  suit  the  heirs  or  legal  representatives  of  the  deceased 
partner.5  The  representative  ought  not  to  be  allowed  to  intervene 
in  such  a  suit,  without  some  good  reason  appearing  therefor.6 

Where  one  of  three  partners  dies,  and  another  is  insolvent  and 
pay*  no  attention  to  the  business,  the  remaining  one  cannot,  by  call- 
ing himself  the  surviving  member,  sue  alone  upon  a  note  payable  to 
the  firm  without  showing  any  assignment  or  transfer  from  the  other 
living  partner.7 

•Davis  v.  Schaffner,  3  Civ.  App.  121  (22  S.  W.  Rep.  822). 

'Dulaney  v.  Walslie,  3  Civ.  App,  174  (22  S.  W.  Rep.  131).  A  suit  might  U> 
maintained  by  the  executrix  of  a  deceased  partner  against  another  partner 
without  having  a  settlement  of  the  partnership  affairs,  if  tin-  obligat ion  sued 
upon  shows  an  indebtedness  by  defendant  independent  of  the  state  of  the  part- 
nership accounts.  McKay  v.  Overton,  65  T.  82.  The  surviving  partner  of  a  law 
firm  may  sue  for  the  amount  due  for  services  rendered  by  the  firm  before  the 
dissolution  of  the  firm  by  the  death  of  one  of  its  members.  And  no  mi 
apparent  why  he  should  not  also  sue  in  the  same  action  for  what  might  be  due 
him  individually  fur  such  services  as  he  rendered  in  the  performance  of  the 
same  contract  after  the  death  of  his  partner,  (.he  client  having  continued  the 
employment  with  the  survivor.  O'Brien  v.  Gilleland,  7«J  T.  602  (15  S.  W.  1;  p. 

>Holdeman  v.  Knight,  Dallara,  566, 

« Henderson  v.  Kinsain,  8  T.  46,  51, 

»  Campbell  v.  Wallace.  3  App.  C.  C.,  §  433,  citing  Fulton  v.  Thompson,  18  T 

.ison  v.  Miller.  55  T.  290. 
7Hine§  v,  Dean,  1  App,  C,  C.,  g  690, 


1S6  PARTIES   TO   ACTIONS.  [§  164. 

£  164.  Suits  on  official  and  other  bonds  —  Sureties. 

An  aeti.m  f<>r  damages  for  breach  of  official  duty  by  a  deputy 
sheriff,  who  is  under  bond  to  the  sheriff,  ought  to  be  brought 
against  the  sheriff,  instead  of  against  the  sheriff's  sureties  and  the 
do] utt v.1  But  the  sheriff  is  not  a  necessary  party  to  a  suit  on  a 
bond  given  by  a  deputy  sheriff  as  collector  of  taxes.  The  bond  in 
such  case  is  treated  as  a  separate  obligation  to  the  state,  wholly  dis- 
tinct from  the  sheriff's  bond.2 

In  suits  for  damages  for  wrongfully  suing  out  and  levying  a  writ 
of  sequestration,  it  is  proper  practice  to  make  the  sureties  on  the 
sequestration"  bond  parties  defendant.  They  have  an  immediate 
and  direct  interest  in  the  amount  of  damages  for  which  they  are 
bound  being  properly  ascertained.3  Where  there  has  been  judg- 
ment against  the  party  suing  out  the  sequestration,  there  is  no 
error  in  rendering  judgment  against  the  sureties  on  the  sequestra- 
tion bond  for  costs.4  And  a  person  becoming  a  surety  on  the  re- 
plevin bond  becomes  a  party  to  the  suit,  and  is  liable  to  have  costs 
adjudged  against  him.5  The  plaintiff  in  a  sequestration  suit  who 
has  given  a  replevy  bond  may,  in  a  suit  for  damages,  be  joined  with 
the  respective  sureties  on  the  sequestration  and  replevy  bonds.6  The 
sureties  in  a  replevin  bond  may  be  sued  without  joining  the  princi- 
pal, where  the  latter  is  insolvent  and  a  non-resident.7  Sureties,  save 
in  statutory  bonds  where  the  statute  authorizes  it,  must  be  made 
parties  before  judgment  can  be  rendered  against  them.8  Where  it 

1  Hurlock  v.  Reinhardt,  41  T.  530. 

2  Butler  v.  State,  2  U.  C.  535.     Where  a  statutory  bond  was  required  to  be 
made  payable  to  the  state  of  Texas,  but  was  made  payable  "  to  Edmond  J. 
Davis,  governor  of  the  state  of  Texas,"  it  was  held  that  the  suit  thereon  could 
be  maintained  in  the  name  of  the  governor  for  the  use  of  the  state.    Ward  v. 
Hubbard,  62  T.  559. 

'Tompkins  v.  Toland.  46  T.  585. 

4  Windus  v.  James,  19  S.  W.  Rep.  873. 

5  Mills  v.  Hackett,  05  T.  580. 

6  Finegan  v.  Read,  27  S.  W.  Rep.  261  (8  Civ.  App.  33). 
;  Hi>ughton  v.  Ledbetter,  37  T.  161. 

«  Williams  v.  Warren.  82  T.  319  (18  S.  W.  Rep.  560).  The  case  was  as  follows :  An 
attachment  at  suit  of  Warren  &  Son  was  levied  upon  property  of  the  East  and 
Texas  Lumber  Company.  Pending  the  proceedings  Harrison  was  ap- 
pointed receiver  of  the  lumber  company.  The  property  was  sold  by  the  receiver 
uinii T  order  of  the  court  and  the  net  proceeds  were  by  order  of  the  court  turned 
over  to  Williams  and  Mings,  creditors  of  the  company,  they  first  executing  a 
bond  to  the  receiver  obligating  themselves  "to  pay  such  judgment  as  Warren  & 
Son  might  recover,"  with  Roland  and  Moody  sureties.  This  bond  was  approved 
by  the  judge.  Neither  Williams  and  Mings  nor  their  sureties  were  made  parties, 
nor  did  they  appear.  It  was  held  that  a  judgment  rendered  upon  a  trial  of  the 
att;u  hment  suit  against  the  obligors  on  the  bond  was  without  jurisdiction. 

Persons  who  receive  the  proceeds  of  a  note  belonging  to  an  estate,  in  payment 
of  a  debt  of  the  administrator  of  the  estate,  are  liable  to  the  estate,  and  in  a  suit 
against  them  the  bondsmen  of  the  administrator  and  the  makers  of  the  note 


•5.]  r.UMIKS    TO    ACTI  1^7 

appears  from  the  terms  of  an  obligation  that  the  surety  has  con- 
tracted to  become  bound  by  a  judgment  that  has  been  or  may  be 
ivm It-red  in  an  action  against  his  principal,  it  is  conclusive  against 
him,  although  he  was  not  a  party  to  the  suit  in  which  the  judgment 
"btained;  but  in  an  undertaking  general  in  character  the  judg- 
ment obtained  against  the  principal  therein  only  creates  a prima 
liability  against  a  surety  not  made  a  party,  nor  given  an  op- 
portunity  to  defend  the  suit  in  which  the  judgment  was  rendered. 
In  suit  upon  a  bond  assuming  partnership  debts,  made  by  one  part- 
ner to  a  retiring  partner,  a  cause  of  action  is  shown  against  sureties 
upon  the  bond  upon  producing  a  judgment  against  the  firm  ren- 
dered upon  a  firm  account  covered  by  such  bond.  It  is  not  neces- 
sary that  the  plaintiffs  shall  have  paid  such  judgment.1 

Where  the  principal  and  sureties  on  a  bond  have  been  duly 
served,  but  do  not  appear  and  answer,  the  plaintiff  may,  by  amend- 
ment, allege  the  principal's  insolvency  and  discontinue  as  to  him, 
and  take  judgment  by  default  against  the  sureties,  without  having 
them  served  with  notice  of  the  amendment.2 

ji  165.  Parties  to  suits  on  official  bonds. 

In  any  suit  brought  by  the  state  of  Texas,  or  by  any  county 
therein,  against  any  officer  who  has  held  his  office  for  more  than 
one  term,  or  who  has  given  more  than  one  official  bond,  the  sureties 
on  each  and  all  such  officer's  official  bonds  may  be  joined  as  defend- 
ants in  one  and  the  same  suit,  whenever  it  is  alleged  in  the  petition 
that  it  is  dillicult  to  determine  when  the  default  sued  for  occurred 
and  which  set  of  sureties  on  such  official  bonds  is  liable  therefor. 

In  any  suit  by  the  state  of  Texas  upon  the  official  bond  of  any 
officer,  any  subordinate  officer  who  has  given  bond,  payable 
either  to  the  state  or  to  such  superior  officer,  to  cover  the  default 
surd  for,  or  any  part  thereof,  together  with  the  sureties  on  his  offi- 
cial bond,  may  be  joined  as  defendants  in  one  and  the  same  suit 
with  sueh  superior  officer  and  his  bondsmen,  whenever  it  is  alleged 
in  the  petition  that  both  of  such  officers  are  liable  for  the  money 
sued  for,  to  the  end  that  all  equities  may  be  adjusted  between  them 
in  one  suit. 

"Whenever  any  official  bond  is  made  payable  to  the  state  of  Texas, 
or  any  oiiieer  thereof,  and  a  recovery  thereon  is  authorized  by  or 
would  inure  to  the  benefit  of  parties  other  than  the  state,  suit  may 
be  instituted  on  such  bond  in  the  name  of  the  state  alone  for  the 
benefit  of  all  parties  entitled  to  recover  thereon.3 

need  not  be  joined,  though  they  may  also  be  liable.    Ullman  v.  Verne,  4  S.  W. 
Rep. 

1  Browne  v.  French,  3  Civ.  A  pp.  \V.  Rep.  581). 

-  ]>.ivi.l>.,n  v.  Heidenheimer.  2  U.  C.  490. 

»RS. 


188  PAKTIES   TO  ACTIONS.  [§§  166,  107. 

§  166.  Parties  to  indemnifying  bonds  may  be  made  parties  to  suits 
against  the  officers. 

Whenever  a  sheriff,  constable,  or  a  deputy  of  either,  has  been  sued 
for  damages  for  any  act  done  in  his  official  character,  and  has  taken 
an  indemnifying  bond  for  such  act  so  done  by  him,  upon  which 
said  act  a  suit  for  damages  is  based,  he  may  make  the  parties, 
both  principal  and  surety,  on  such  bond  of  indemnity  parties  de- 
fendant in  the  suit  for  damages,  and  the  cause  may  be  continued 
for  the  purpose  of  obtaining  service  on  such  parties.1  Where  the 
sheriff  levies  an  attachment  on  mortgaged  property  and  takes  it 
f  ruin  the  possession  of  those  who  have  a  right  to  hold  it  until  the 
mortgage  debt  is  paid  and  takes  an  indemnifying  bond,  when  sued 
f<  >r  damages  he  must  move  promptly  in  bringing  the  parties  to  the 
bond  into  court,2  It  is  held  that  the  filing  of  the  proper  plea 
within  a  week  after  appearance  clay  is  proper  diligence.3 

§167.  Judicial  sales;  setting  aside. 

When,  in  a  suit  to  set  aside  an  execution  sale  on  account  of  the 
fraud  of  the  purchaser,  there  are  no  equities  to  adjust  between  the 
judgment  creditors  and  the  purchaser,  no  complaint  being  made  as 
to  the  validity  of  the  judgment  and  execution,  the  creditor  is  not  a 
necessary  party ;  and  when  the  relief  is  sought  against  the  original 
purchaser  through  whose  fraud  the  sale  was  consummated,  the  pro- 
ceeding is  not  collateral  in  its  character,4  In  a  suit  to  set  aside  a 

1  Acts  1885,  p.  90:  R.  S.  1204  Suit  was  brought  against  a  United  States  mar- 
shal and  his  sureties  for  the  value  of  goods  seized  and  belonging  to  plaintiffs. 
The  marshal  had  taken  an  indemnity  bond;  the  principals,  however,  were  non- 
residents. The  marshal  made  his  indemnitors  parties,  and  asked  that  the  case 
be  continued  in  order  to  obtain  service  on  the  principals.  This  was  refused. 
Without  deciding  that  the  above  statute  can  be  applied  to  United  States  mar- 
shals, it  was  held  that  the  court  did  not  err  in  refusing  to  postpone  the  case. 
The  suit  for  damages  for  the  seizure  of  the  goods  was  not  a  suit  on  the  indem- 
nity bond;  no  writ  of  attachment  could  issue  in  the  suit,  and  there  was  no 
nirthod  by  which  service  of  citation  could  be  had  upon  the  non-resident  prin- 
cipals. It  would  have  been  idle  to  attempt  the  service  on  them.  The  sureties 
mi  the  indemnity  bond  were  properly  joined  as  defendants.  Cabell  v.  Hamilton 
Brown  Shoe  Co.,  81  T.  104  (16  a  W.  Rep.  811), 

*  Stiles  v.  Hill,  62  T.  429.  A  sheriff  levied  three  writs  of  attachment  on  goods 
for  as  many  different  creditors,  who  acted  each  without  any  concert. of  action 
or  agreement  with  the  others.  Each  executed  to  the  sheriff  an  indemnifying 
bond.  The  assignee  having  the  goods  in  possession  when  seized  under  the  three 
writB  sued  the  sheriff  and  his  sureties.  The  sheriff  caused  the  creditors  who 
executed  the  indemnifying  bonds  to  be  made  parties  defendant  to  the  suit,  and 
prayed  a  recovery  over  against  them  for  any  damages  that  might  be  recovered 
against  him  and  his  sureties.  It  was  held  that  the  sheriff  had  as  many  distinct 
causes  of  action  as  there  were  indemnifying  bonds,  and  they  could  not  properly 
!*•  made  parties  in  the  one  action  in  the  manner  desired.  Thomas  v,  Chapman, 
62  T.  19a 

»  Land  v.  Klein,  29  a  W.  Rep.  657. 

« Stone  v,  Day,  69  T,  13  (5  S.  W,  Rep.  642). 


i''«9.]  PARTIES   TO   ACTI<  189 

sheriff's  sale  for  inadequacy  of  price,  the  plaintiff  in  execution  as 
well  as  the  purchaser  should  be  made  a  party.1  A  tender  of  the 
purchase-money  by  defendant  in  execution  attacking  the  sale  \vill 
obviate  the  necessity  of  making  the  plaintiff  in  execution  a  party 
in  the  suit  to  avoid  the  sale.3 

1 68.  Trial  of  right  of  property. 

When  property  held  under  several  writs  of  attachment  is  claimed 
l»y  ;i  third  party,  who  files  his  claim  and  bond  under  the  statute, 
the  better  practice  is  to  institute  but  one  proceeding  to  try  the  right 
<>f  property,  and  to  make  each  attaching  creditor  a  party  thereto. 
In  such  a  proceeding  the  equities  and  priorities  of  all  parties  may 
1  justed.*  An  attachment  was  levied  upon  personal  property. 
The  property  was  in  possession  of  a  mortgagee  of  the  defendant  in 
attachment.  The  assignee,  under  a  general  assignment  by  the  de- 
fendant in  attachment  made  subsequent  to  the  mortgage,  filed  claim 
bond  and  oath,  and  it  was  held  that  in  the  proceedings  to  try  title 
to  the  property  the  mortgagee  in  possession  was  a  proper  party  and 
could  be  brought  in.4 

"Where  a  lien  is  reserved  in  notes  given  for  the  purchase  of  per- 
sonal property,  on  which  notes  a  judgment  not  foreclosing  the  lien 
is  recovered,  and  in  that  suit  an  attachment  is  issued  and  levied  on 
the  property  covered  by  the  lien,  such  contract  lien  may,  in  an  ac- 
tion for  the  trial  of  the  right  of  property,  be  foreclosed  and  enforced 
against  a  claimant  holding  the  property  under  transfer  from  the 
judgment  debtor;  and  this  without  making  the  judgment  debtor  a 
party  thereto.5 

§  169.  Parties  to  scire  facias  to  revive  judgment. 

A  soire  facias  is  a  judicial  writ  and  must  pursue  the  nature  of 
the  judgment;  and  when  the  judgment  is  joint  the  scire  facias 
must  also  be  joint.6  When  a  judgment  is  recovered  against  two 
and  one  dies,  the  judgment  cannot  be  revived  by  scire  facias 
against  the  survivor,  unless  it  is  at  the  same  time  revived  against 
the  representatives  of  the  deceased;  and  where  the  plaintiff  ob- 
tained a  scire  facias  against  the  survivor  within  the  ten  years,  and, 
on  exception,  amended,  and  made  the  representatives  of  the  de- 
ceased also  parties,  after  the  lapse  of  ten  years  it  was  held  that  the 
judgment  could  not  be  revived  against  either.7  And  when  it  is 

i  Millrr  v.  Koertge,  70  T.  162  (7  a  W.  Rep.  091). 

i  ver  v.  Nugent,  72  T.  272  (10  S.  W.  Rep.  458). 
Blankcnsliip  v.  Thurman,  68  T.  671  (5  a  W.  Rep.  836). 
Dupuy  v.  Ullraan,  78  T.  341  (14  S.  W.  Rep.  790). 

•  Howard  v.  Parks,  1  Civ.  App.  603  (21  a  W.  Rep.  269. 

*  Carson  v.  Moore,  23  T.  450. 

"  Austin  v.  Reynolds,  13  T.  544;  Henderson  v.  Vanhook,  24  T.  358;  a  C.,  25  T. 
433, 


190  PARTIES   TO    ACTIONS.  [§  170. 

sought  to  revive  a  joint  judgment  against  the  representative  of  a 
deceased  ]>;irtv,  the  survivor  must  also  be  joined.1  An  action  of 
debt  upon  the  judgment  is  governed  by  the  rules  applicable  to  ac- 
tions on  joint  contracts.2  A  soire  facias  to  revive  a  judgment  is  a 
continuation  of  the  same  suit,  and  the  jurisdiction  is  where  the  orig- 
inal judgment  was  rendered,  regardless  of  the  residence  of  the  de- 
fendants.1 

£  170.  Judgments,  setting  aside  and  enjoining. 

To  authorize  a  re-examination  of  a  case  at  a  term  subsequent  to 
that  at  which  the  judgment  which  is  sought  to  be  set  aside  was 
rendered,  all  the  parties  to  the  former  proceeding  must  be  made 
parties;  nor  is  this  rule  affected  by  the  fact  that  the  judgment  was 
entered  on  an  unauthorized  agreement  made  by  one  of  the  attor- 
neys in  the  former  suit.  All  are  necessary  parties  who  were  affected 
by  the  judgment  based  on  such  agreement.4  When  an  attack  is 
made  upon  a  judgment  on  the  ground  of  fraud,  and  the  fraud  is 
alleged  to  be  an  agreement  made  between  the  attorneys  represent- 
ing the  plaintiff  and  those  representing  the  defendants,  and  it  ap- 
pears that  prior  to  the  rendition  of  such  judgment  the  attorneys 
for  plaintiff  were  made  parties  to  the  suit,  and  the  judgment  vested 
title  in  them  to  part  of  the  land  in  litigation,  those  attorneys  are 
necessary  parties  to  the  suit  to  set  aside  the  judgment.* 

In  a  suit  by  a  judgment  debtor  to  enjoin  the  execution  of  the 
judgment,  an  assignee  who  seeks  to  enforce  the  judgment  is  the 
only  necessary  party.'  But  it  is  held  that  where  the  object  of  the 
suit  is  to  enjoin,  supersede  or  discharge  by  set-off  a  judgment  of  a 
justice  of  the  peace  in  the  hands  of  an  assignee,  the  judgment  plaint- 
iff is  a  proper  party.7 

When  the  leading  object  and  purpose  of  a  suit  is  to  vacate  and 
annul  a  judgment,  the  parties  to  the  original  suit  or  their  privies 
are  necessary  parties.  A  judgment  is  a  vested  right  in  the  parties 
by  whom  it  is  recovered.  If  it  is  sought  to  review,  correct,  cancel 
or  annul  it,  either  in  the  court  in  which  it  was  pronounced  or  in  an 
appellate  tribunal,  the  parties  to  it  or  their  privies  must  be  given 
the  opportunity  of  being  heard  before  it  can  be  done.  It  is  ac- 
cordingly held,  that  where  the  petition  in  action  of  trespass  to  try 

1  Baxter  v.  Dear,  24  T.  17. 

1  If  a  plaintiff  desires  to  enforce  a  judgment  against  one  or  more  of  several, 
without  joining  all.  his  remedy  is  by  an  action  of  debt  on  the  judgment.  Carson 
v.  Moore,  28  T.  450. 

» Schmidtke  v.  Miller,  71  T.  103  (8  a  W.  Rep.  638). 

4  Williams  v.  Nolan,  58  T.  708. 

•  City  of  Goliad  v.  Weisiger,  4  Civ.  App.  653  (23  S.  W.  Rep.  694). 

•  Ellis  v.  Kerr,  23  S.  W.  Rep.  1050. 
7  Duncan  v.  Bullock,  18  T.  oil. 


,  1.]  i'Aini;>  TO  AOT1  ll»l 

title  shows  that  the  title  of  plaintiff  is  dependent  upon  the  right 
to  annul  and  vacate  a  judgment,  the  parties  to  such  judgment  are 
necessary  parties  to  the  suit,  and  their  omission  is  ground  for  dis- 
missal on  demurrer.  If  the  judgment  were  an  absolute  nullity,  or 
the  plaintilf  had  the  better  title  to  all  or  a  part  of  the  land  de- 
scribed, tlu-  action  would  lie  against  the  person  in  possession,  and 
all  persons  asserting  title  under  the  judgment,  without  joining  the 
plaintitf  in  the  former  suit.  Not  so,  however,  where  the  judgment 
is  only  voidable.1 

?'  171.  Actions  against  carriers. 

The  consignor  may  sue  the  carrier  for  breach  of  the  freight  con- 
tract (e.  g.,  for  injury  to  stock  shipped)  without  reference  to  his 
property  in  the  goods  shipped.2  "Where  a  contract  of  sale  provides 
that  the  property  is  to  be  delivered  to  the  buyer  at  a  certain  place, 
and  the  seller  ships  it  to  the  buyer  at  that  place,  the  right  of  action 
for  loss  or  injury  thereto  by  the  carrier  is  in  the  consignor,  since, 
until  the  delivery,  it  is  at  his  risk.3 

Where  the  person  with  whom  a  contract  of  shipment  is  made 
brings  suit  for  injury  to  the  property,  it  is  not  error  to  exclude  evi- 
dence that  other  persons  were  interested  with  him  in  the  property.4 
Though  in  actions  against  a  common  carrier  for  non-delivery  or  loss 
of  goods  or  default  in  conveyance,  the  owner  of  the  goods  is  ordi- 
narily the  person  to  demand  compensation,  yet  one  who  has  a  special 
property  in  them,  as  a  factor,  or  a  special  agreement  for  carrying 
them,  may  sue.  So  the  shipper  in  whose  name  the  bill  of  lading  was 
taken  may  sue,  a  privity  of  contract  being  established  between  the 
parties  by  means  of  the  bill  of  lading.5 

1  York  v.  Cartwright,  42  T.  186.  Where  a  judgment  is  rendered  jointly  against 
two  persons,  and  one  of  them  brings  suit  to  enjoin  it  on  the  ground  of  payment, 
his  co-defendant  in  the  judgment  is  not  a  proper  defendant  in  the  suit.  Will- 
iams v.  Bradbury,  9  T.  487.  The  plaintiff  in  execution  is  a  necessary  party  to 
a  suit  against  the  sheriff  to  enjoin  a  sale  of  property  levied  upon.  Ryburn  v. 
Getzendaner,  1  U.  C.  849.  A  person  who  has  conveyed  land  with  covenants  of 
warranty  has  sufficient  interest  to  seek  for  an  injunction  to  restrain  a  sale  thereof 
on  execution,  especially  where  the  facts  establishing  the  superiority  of  his  right 
rest  in  paroL  Huggins  v.  White,  7  Civ.  App.  568  (27  S.  W.  Rep.  1066). 

*  Ma  Pac.  Ry.  Co.  v.  Smith,  84  T.  348  (19  a  W.  Rep.  509). 

1  Ma  Pac.  Ry.  Ca  v.  Scott,  4  Civ.  App.  76  (26  a  W.  Rep.  239).  Butter  was  dam- 
aged while  in  the  hands  of  the  carrier.  It  was  delivered  by  the  consignee  to  a 
third  person,  with  the  request  that  the  latter  sell  it  for  the  account  of  the  con- 
signee and  sue  the  carrier  for  damages.  It  was  held  that  such  third  person,  in 
the  absence  of  other  right  than  as  stated,  had  no  right  of  action.  G.,  C.  &  S.  F. 
Ry.  Ca  v.  Wolston.  28  S.  W.  Rep.  23S. 

«  Tex.  &  Pac,  Ry.  Ca  v.  Klepper,  24  &  W.  Rep.  567;  G.,  H.  &  a  A.  Ry.  Ca  v. 
Barnett,  26  a  W.  Rep.  782.  The  right  of  action  belongs  to  those  who  were  joint 
owners  at  the  time  of  the  injury,  though  they  were  not  such  at  the  time  the 
contract  of  shipment  was  made.  Tex.  &  Puc.  Ry.  Co.  v.  Sims,  26  a  W.  Rep. 
G34. 

*  H.  &  T.  C.  Ry.  Co.  v.  Stewart,  1  App,  C.  C.,  §  1247. 


102  PARTIES   TO   ACTIONS.  [§§  172,  173. 

Either  the  owner  or  the  shipper  of  goods  may  sue  under  article 
:'.L"J.  Revised  Statutes,  for  refusal  to  deliver  a  bill  of  lading.  For 
ret u sal  to  carry  goods,  as  prescribed  by  article  321,  it  is  held  that 
the  right  of  action  is  in  the  owner.1 

§  172.  Actions  against  telegraph  companies. 

The  rule  in  this  state  is,  that  the  right  of  action  for  damages 
caused  by  the  negligence  of  a  telegraph  company  in  receiving, 
transmitting  or  delivering  a  message  is  in  the  one  for  whose  bene- 
fit the  message  is  sent,  whether  it  be  sent  at  the  request  of  such 
person  or  by  another  for  him  and  for  his  benefit.  And  it  is  not 
material  to  the  rights  of  such  person  that  his  interest  or  the  send- 
er's agency  in  the  matter  should  be  known  to  the  company  or  its 
agent.2  For  damages  suffered  by  the  wife  the  husband  may  sue 
alone.'  Where  the  damage  was  to  a  firm,  and  the  claim  was  as- 
signed to  one  member  thereof,  he  could  sue.4 

§  173.  Tenants  in  common. 

One  tenant  in  common  may  sue  for  and  recover  an  entire  tract 
of  land,  as  against  a  mere  trespasser  or  one  having  no  title.5  This 
rule  was  not  affected  by  any  changes  made  in  the  law  by  the  adop- 
tion of  the  Eevised  Statutes,  and  it  is  held  that  the  requirement 
that  a  plaintiff  shall  state  the  extent  of  his  interest  does  not  affect 
the  rule.6  As  between  the  defendant  and  a  tenant  not  joined,  how- 

1  Mo.  Pac.  Ry.  Co.  v.  Price.  3  App.  C.  C.,  §  361. 

2  Loper  v.  Telegraph  Co.,  70  T.  689  (8  S.  W.  Rep.  600);  W.  U.  Tel.  Co.  v.  Broesche, 
72  T.  654  (10  S.  W.  Rep.  734);  W.  U.  Tel.  Co.  v.  Jones,  81  T.  271  (16  S.  W.  Rep. 
1006);  W.  U.  Tel.  Co.  v.  Beringer,  84  T.  38  (19  S.  W.  Rep.  336);  Martin  v.  Telegraph 
Co.,  1  Civ.  App.  143  (20  S.  W.  Rep.  860);  W.  U.  Tel.  Co.  v.  Carter,  2  Civ.  App.  624 
(21  S.  W.  Rep.  688);  W.  U.  Tel.  Co.  v.  Evans,  5  Civ.  App.  55  (23  S.  W.  Rep.  998). 

»  Loper  v.  Telegraph  Co.,  70  T.  689  (8  S.  W.  Rep.  600);  W.  U.  Tel.  Co.  v.  Adams,  75 
T.  531  (12  S.  W:  Rep.  857).  Damages  to  both  husband  and  wife  by  negligent  deliv- 
ery of  a  telephone  message  may  be  recovered  in  one  suit  in  which  both  join. 
Southwestern  T.  &  T.  Co.  v.  Dale,  27  S.  W.  Rep.  1059. 

4  Martin  v.  Telegraph  Co.,  1  Civ.  App.,  143.  Telegraphic  messages  were  sent  by 
the  son  to  the  father,  but  owing  to  negligence  and  delay  in  the  delivery  the 
father  was  delayed  in  reaching  Dallas  before  the  burial  of  another  son  of  whose 
illness  and  death  he  was  not  advised  otherwise.  The  son  paid  the  charges  for 
sending  the  messages.  The  father  and  son  were  joined  as  plaintiffs  against  the 
telegraph  company  for  damages,  and  it  was  held  that  exceptions  by  the  defend- 
ant to  the  petition  for  misjoinder  of  plaintiffs  and  of  causes  of  action  were 
rightly  sustained.  Anderson  v.  Telegraph  Co.,  84  T.  17  (19  S.  W.  Rep.  285). 

6Contreras  v.  Haynes,  61  T.  103:  Ney  v.  Mumme,  66  T.  268  (17  S.  W.  Rep.  407); 
Hancock  v.  Tram  Lumber  Co.,  65  T.  225;  Johnson  v.  Schumacher,  72  T.  334  (12 
a  W.  Rep.  207);  Wright  v.  Dunn,  73  T.  293  (11  S.  W.  Rep.  330);  Carley  v.  Parton, 
78  T.  98  (128.  W.  Rep.  950);  Mitchell  v.  Mitchell,  80  T.  101  (15  S.  W.  Rep.  705); 
Harbor  v.  Dyches,  14  S.  W.  Rep.  580;  Croft  v.  Rains,  10  T.  523;  Watrous  v.  Mc- 
Grew,  16  T.  510;  Hutchins  v.  Bacon,  46  T.  414;  Read  v.  Allen,  56  T.  176;  Russell 
T.  Oliver,  78  T.  11. 

'Sowers  v.  Peterson,  59  T.  216;  Pilcher  v.  Kirk,  60  T.  162;  Telfener  v.  Dillard, 
70  T,  139  (7  S.  \V.  Rep.  847);  Alien  v.  Peters,  77  T.  59  (13  &  W.  Rep.  767). 


,3.]  PARTIES   TO   ACT!  193 

ever,  tlic  suit  is  not  an  estoppel;  and  where  the  defendant  > 
lishes  title  to  a  part  interest  in  the  land,  plaintiff  cannot  recover  for 
other  tenants  in  common  not  parties.1  A  tenant  in  common  may 
defend  for  the  interests  of  his  co-tenants  as  well  as  for  himself.2 
Win-re  two  co-tenants  join,  if  either  shows  a  clear  title  they  may 
j.iinst  one  snowing  no  title.3 

In  a  suit  to  recover  damages  for  an  injury  to  real  property,  all 
the  tenants  in  common  must  join.4  The  rule  applies  where  a  father 
unit  in  common  with  the  children  of  himself  and  wife  sues  for 
damages.  That  the  premises  were  used  before  and  after  the  death 
of  the  wife  as  a  place  of  business  might  entitle  the  husband  to  re- 
1  for  injury  to  the  right  of  present  possession,  but  the  children, 
to  the  extent  of  their  present  right  of  future  possession,  suffer  in- 
jury, and  their  cause  of  action  could  not  be  barred  by  a  judgment 
in  favor  of  their  father.5  While  all  tenants  in  common  should  join 
as  plaintiffs  in  an  action  for  trespass,  still  a  defendant  can,  and 
should,  by  instructions  asked,  protect  himself  upon  the  trial  and 
have  damages  apportioned,  and  require  the  verdict  to  be  limited  to 
the  proportional  interest  held  by  the  plaintiffs.6 

To  avoid  multiplicity  of  suits,  all  the  tenants  in  common  must 
join  in  a  suit  of  trespass  quare  clausum  fregit}  A  recovery  by  a 
co-tenant  for  damages  to  land  owned  in  common  by  him  and  others, 
but  inclosed  and  used  by  him  for  a  pasture,  occasioned  by  the  neg- 
ligent burning  of  grass  by  a  railway  company,  is  not  a  bar  to  the 
subsequent  suit  of  another  co-tenant  for  damages  sustained  by  rea- 
son of  such  negligent  burning,  to  which  all  the  co-tenants  are  par- 
ties. Though  all  the  co-tenants  should  join  in  such  suit,  yet  if  the 
co-tenant  bringing  the  first  suit  sued  for  the  entire  damage,  and 
the  railway  company  failed  to  interpose  such  defenses  as  it  was  en- 
titled to  do  under  the  law  to  prevent  such  recovery,  which  would 
have  been  a  plea  in  abatement  for  the  non-joinder  of  the  other  co- 
tenants,  or  by  way  of  apportionment  of  the  damages  on  the  trial, 
then  such  judgment  is  not  a  bar  to  the  subsequent  suit  of  the  other 
co-tenants  for  the  damages  to  their  interests.  The  rule  that,  where 
••tenants  in  common  have  a  joint  action  for  a  trespass,  a  release 
and  settlement  of  damages  for  such  trespass  by  one  of  the  tenants 
in  common  binds  his  co-tenants,  and  is  a  bar  to  an  action  by  them." 
•does  not  obtain  in  this  state.8 

i  Boone  v.  Knox.  80  T.  642:  Allen  v.  Peters,  77  T.  59  (13  a  W.  Rep.  767X 
2Linnartz  v.  McCull.K-k.  27  S.  W.  Rep.  279. 
'Flannagan  v.  Nasworthy.  1  Civ.  App.  470  (20  S.  W.  Rep.  839). 
4  a,  C.  &  S.  F.  Ry.  Co.  v.  Cusen  berry,  88  T.  525  (26  S.  W.  Rep.  43). 
»  Rowland  v.  Murphy.  «6  T.  .VJ4  . 1  S.  W.  Rep.  658);  May  v.  SlaUe,  24  T.  205. 
«  Lee  v.  Turner.  71  T.  'J«>4  (9  S.  W.  Rep,  149). 
:  May  v.  Slade,  24  T.  208:  Parks  v.  Dial,  56  T.  261. 

SGillum  v.  St  L.,  A.  &  T.  Ry.  Co.,  4  Civ.  App.  •;-,»3  (23  a  W.  Rep.  716).     When, 
13 


PAKTIES   TO   ACTIONS.  [§ 

One  tenant  in  common  or  joint  tenant  cannot  maintain  a  suit  for 
the  recovery  of  rent,  when  the  contract  is  joint  and  the  rent  is  to 
be  paid  to  the  co-tenants  jointly ;  but  a  petition  defective  in  this 
respect  may  be  amended.1  But  one  of  several  tenants  in  common 
recovering  land  held  by  a  trespasser,  or  by  one  without  license  from 
any  of  the  owners,  can  recover  rents  pro  rata  against  such  occu- 
pant.2 

The  institution  of  a  suit  by  a  tenant  in  common,  there  being 
nothing  to  indicate  that  the  suit  is  brought  for  the  benefit  of  any 
other  part  owner,  will  not  stop  the  running  of  the  statute  of  limita- 
tion against  any  others  than  himself.  By  the  institution  of  an  un- 
successful suit  he  binds  no  one  but  himself.  Other  joint  owners 
are  not  estopped  by  a  judgment  against  him.3 

"Where  one  tenant  in  common  holds  the  legal  title,  one  claiming 
to  be  a  co-tenant,  and  whose  interest  is  denied,  may  sue  him,  with- 
out joining  the  other  tenants,  to  have  his  interest  declared,  and  to 
recover  for  advances  made  for  the  common  benefit.4 

§  174.  Fraudulent  conveyance;  parties  to  suits  to  set  aside. 

A  simple  contract  creditor  may  sue  to  set  aside  a  fraudulent  con- 
veyance.5 Creditors  and  subsequent  purchasers  are  the  proper 
parties  to  attack  such  a  conveyance.6  And  it  is  held  that  an  ad- 
ministrator cannot  maintain  the  suit.7  But  it  is  said  that  an  excep- 
tion exists  where  the  deceased  retained  possession  of  the  property 
until  his  death ;  and  administration  having  been  granted  before  the 
fraudulent  donee  took  possession,  it  was  held  that  the  property  was 
assets,  and  that  the  administrator,  as  the  representative  of  the  cred- 
itors, might  maintain  a  suit  for  its  recovery.8 

The  creditor  and  vendee  are  the  only  necessary  parties  to  a  suit 
to  set  aside,  as  fraudulent  as  to  creditors,  the  deed  of  one  who  died 
without  property,  and  on  whose  estate  no  administration  has  been 
taken  out.9  All  beneficiaries  adversely  interested  to  the  plaintiffs 
are  necessary  parties  defendant  in  a  suit  by  a  part  of  the  beneficia- 

by  agreement  between  tenants  in  common,  one  has  the  exclusive  use  and  pos- 
session of  a  part  of  the  common  property,  while  the  other  has  like  use  of  other 
lands  thus  owned,  either  may  recover  for  an  injury  done  to  the  property  to 
which  he  lias  right  of  such  exclusive  use  or  occupation.  G.,  C.  &  S.  F.  Ry.  Co.  v. 
Wheat,  68  T.  133  (3  S.  W.  Rep.  455). 

1  Weinsteine  v.  Harrison,  06  T.  546  (1  S.  W.  Rep.  626). 

2  \Vhitaker  v.  Allday,  71  T.  623  (9  S.  W.  Rep.  483). 

'Burleson  v.  Burleson,  28  T.  410;  Stovall  v.  Carmichael,  52  T.  383. 
4  Cotton  v.  Coit,  30  S.  W.  Rep.  281. 
'Shirley  v.  Railway  Co.,  78  T.  131  (10  S.  W.  Rep.  543). 

•Cobb  v.  Norwood,  11  T.  556;  Danzey  v.  Smith,  4  T.  411;  Avery  v.  Avery,  12  T. 
54;  Connell  v.  Chandler,  13  T.  5. 

•Wilson  v.  Demander,  71  T.  603  (9  S.  W.  Rep.  678). 
Hunt  v.  Butterworth,  21  T.  133. 
.     •  Heard  v.  McKinney,  1  U.  C.  83. 


75,  176.]  PARTIES   TO    ACTIONS.  195 

ries  to  set  aside  a  trust  deed  giving  preference  to  creditors  in  the 
order  named  in  it.  Those  having  priority  over  the  plaintiffs  are 
adversely  interested  and  cannot  be  represented  by  them  in  such 
suit.1 

§175.  Mandamus  proceedings. 

It  is  a  general  rule  that  when  the  performance  of  a  duty  is  sought 
to  be  compelled  by  the  writ  of  mandamus,  all  persons  charged  with 
the  performance  of  that  duty  must  be  made  parties  defendant  in 
the  writ.2  All  parties  interested  should  be  summoned,  if  known,  to 
come  in  and  defend  their  interests.  If  they  are  not  summoned,  and, 
having  knowledge  of  the  proceedings,  fail  to  come  in  and  defend, 
tli«\v  may  not  bring  a  separate  action  to  litigate  the  same  matter.* 
All  persons  who,  to  the  knowledge  of  the  applicant,  are  interested 
should  be  summoned  to  defend  a  proceeding  to  compel  a  surveyor 
to  survey  or  the  commissioner  of  the  general  land  office  to  issue  a 
patent.4  The  parties  interested  in  such  a  case  may  come  in  and 
try  the  issue  made  by  a  contest  of  the  return  of  the  surveyor,  the 
return  being  to  the  effect  that  the  land  had  been  previously  sur- 
•  •d  or  was  covered  by  an  original  title.5 

§  176.  Perpetuating  testimony. 

In  a  suit  under  the  statute  to  perpetuate  testimony  it  is  onlynec- 
y  that  those  who  are  made  defendants  have,  or  are  supposed 
to  have,  an  adverse  interest.  It  is  not  necessary  that  all  the  parties 
adversely  interested  should  be  joined  as  defendants,  since  the  testi- 
mony perpetuated  can  only  affect  those  who  are  made  parties.8 

1  Hudson  v.  Milling  &  Elevator  Co.,  79  T.  401  (15  S.  W.  Rep.  385):  Collins  v. 
Sanger,  8  Civ.  App.  69.  Four  creditors  by  simple  contract,  in  one  action,  sued 
their  common  debtor,  and,  charging  that  other  parties  had  conspired  with  him 
to  defraud  plaintiffs,  and  were  in  possession  of  the  proceeds  of  his  proj>«>rty. 
Bought  against  them  a  personal  judgment  for  the  amount  of  plaintiffs'  claims 
against  the  debtor.  It  being  the  law  that  the  proceeds  of  property  fraudult-ntly 
conveyed  and  in  the  hands  of  a  transferee  who  was  a  party  to  the  fraud  cannot 
be  readied  by  personal  judgment  against  the  transferee,  there  was  a  misjoinder 
<>f  parties  plaintiff.  Following  Le  Gierse  v.  Kelluiu,  66  T.  342  (8  &  W.  Rep.  509). 
Blum  v.  Goldman,  66  T.  621  (1  S.  W.  Rep.  899). 

2Gaal  v.  Townsend.  77  T.  464  (14  S.  \V.  Rep.  365).  A  county  f. >iniiiissi<>ncr  \v;is 
elected  and  qualified  as  mayor  of  a  town  in  the  county.  The  county  judge, 
thinking  the  office  of  commissioner  vacated  by  the  act  of  qualifying  as  mayor, 
appointed  a  successor.  Mandamus  was  brought  against  the  county  judge  and 
his  appointee,  and  it  was  held  that  the  other  county  commissioners  were  neces- 
sary parties. 

»  Smith  v.  Porter,  2  T.  57. 

4  Cullera  v.  Latimer,  4  T.  329. 

i 1  kins  v.  Kirchain,  10  T.  375.  In  a  suit  by  one  claiming  pre-emption  rights, 
brought  against  the  county  surveyor  to  compel,  by  mandamus,  a  survey,  and 
against  parties  in  possession  to  recover  the  land,  the  plaintiff  may  dismiss  as  to 
the  surveyor  and  prosecute  the  suit  to  try  title  against  the  parties  in  possession. 
Throckington  v.  Davenport*  55  T.  236. 

«  St  L.,  A.  &  T.  Ry.  Co,  v.  Harris,  73  T.  375  (11  S.  W.  Rep.  405);  R.  a  2277. 


J96  PARTIES    TO   ACTIONS.  [§  177. 

§  177.  Various  interests  in  land. 

in  a  suit  for  specific  performance,  a  previous  vendor,  in  whom 
the  title  yet  remains,  is  a  proper  party.1  Heirs  are  not  necessary 
parties  in  a  suit  for  specific  performance  of  a  contract  made  by 
their  ancestor;2  the  executor  or  administrator  is  the  proper  de- 
IVndant:  but  it  would  not  be  error,  it  seems,  to  join  the  heirs.3 
Where  the  surviving  husband  was  sued  for  specific  performance  of 
a  contract  to  convey  community  property,  a  motion  to  join  the 
heirs  of  the  deceased  wife,  made  after  a  long  delay,  was  properly 
overruled.4  Where  A.  made  his  title  bond  to  B.,  and  B.  assigned 
to  C.,  and  C.  executed  his  bond  to  D.,  and  the  latter  to  E.,  in  a  suit 
by  E.  against  A.  for  specific  performance  the  intermediate  parties 
were  necessary  parties  to  the  suit.5 

Where  a  vendor  conveys  by  general  warranty,  a  judgment  in  a 
suit  prosecuted  by  him,  after  the  conveyance,  to  quiet  the  title,  will 
inure  to  the  benefit  of  his  vendee,  though  the  latter  was  not  a  party 
to  the  suit.6 

In  an  action  involving  the  title  to  real  estate  in  which  the  defend- 
ant does  not  make  his  warrantor  a  party,  the  judgment  therein  is 
not  an  estoppel  against  said  warrantor,  nor  is  it  evidence  in  an  ac- 
tion by  defendant  against  his  warrantor  for  breach  of  warranty  of 
the  superiority  of  the  title  upon  which  recovery  was  had  against 
defendant.7  Where  it  is  charged  that  the  original  grantee  had 
parted  with  his  title,  he  is  not  a  proper  party  to  a  suit  to  recover 
the  land  from  a  purchaser  participating  in  the  fraud  in  obtaining 
the  title.8 

Under  our  system,  in  which  there  is  no  distinction,  as  to  the  man- 
ner and  time  of  their  enforcement,  between  legal  and  equitable 
rights,  the  joinder  by  mutual  consent  of  plaintiffs  in  trespass  to  try 
title,  in  one  of  whom  is  vested  the  legal  title,  and  in  the  other  the 
equitable  interest,  based  on  a  contract  with  the  owner  of  the  legal 
title,  though  an  irregularity,  is  not  fatal  to  the  action,  and  would 
constitute  no  ground  for  reversal.9  In  a  suit  for  the  recovery  of 
land,  and  a  direct  attack  upon  the  judgment  under  which  it  was 
sold,  any  person  claiming  the  land  under  the  judgment  is  a  proper 

1  Allcorn  v.  Butler,  9  T.  56. 

2  Shannon  v.  Taylor,  16  T.  413;  Ottenhouse  v.  Burleson,  11  T.87;  Holt  v.  dem- 
ons, 3  T.  423;  Owen  v.  Shaw,  20  T.  81. 

3  Ottenhouse  v.  Burleson,  11  T.  87.    It  is  held  that  minor  heirs  may  be  brought 
in.    Kegans  v.  Allcorn,  9  T.  25. 

4  Burleson  v.  Burleson,  15  T.  423. 
«  Allison  v.  Shilling,  27  T.  450. 

«  Kramer  v.  Breedlove,  3  S.  W.  Rep.  541. 

7  McGregor  v.  Tabor,  26  S.  W.  Rep.  443. 

«  State  v.  Land  Co.,  73  T.  450  (11  S.  W.  Rep.  488). 

«Satterwhite  v.  Rosser,  61  T.  166. 


§178.]  PARTIES   TO    ACTIONS.  T.'T 

party.1  Where  several  persons  join  in  the  same  petition  to  recover 
distinct  tracts  of  land,  there  being  no  common  interest  in  any  of 
the  tracts,  a  demurrer  for  misjoincler  is  improperly  overruled.2 

In  a  suit  on  a  contract  for  the  price  of  timber,  the  defendant  has 
the  right  to  have  one  made  a  party  \vho  contests  plaintiff's  title  to 
the  land.  Such  party  cannot  intervene.8 

178.  Lien-holders  and  incumbrancers. 

Where  different  persons  hold  liens  on  the  same  property,  who  are 
knmvn,  they  should  all  be  made  parties,  if  practicable,  when  the 
right  of  any  one  of  them  is  sought  to  be  enforced.4  A  person  claim- 
ing to  have  taken  a  mortgage  without  notice  of  a  lien  sought  to  be 
enforced  is  a  necessary  party.5  Where  a  mortgage  is  executed  to 
secure  two  notes  falling  due  at  different  times,  the  holder  of  the 
note  first  falling  due  is  a  necessary  party  to  a  suit  to  foreclose 
brought  by  the  holder  of  the  other  note.6 

In  a  proceeding  to  revive  a  judgment  and  declare  a  lien  on  land 
for  the  amount  thereof,  the  parties  executing  the  note  on  which 
the  judgment  was  rendered,  as  well  as  a  subsequent  purchaser 

iHeidenheimer  v.  Loring,  6  Civ.  App.  560  (26  S.  W.  Rep.  99). 

2O'Xeal  v.  Lockhart,  2  U.  C.  597.  One  claiming  title  through  a  conveyance 
made  by  the  surviving  wife  is  not  a  proper  party  to  a  probate  proceeding  to 
subject  the  land  to  the  payment  of  the  deceased  husband's  debts.  Nix  v.  Mayer, 
\V.  Rep.  819.  In  a  suit  to  compel  a  surveyor  to  make  a  survey  and  return 
the  field-notes  thereof  to  the  general  land  office,  all  who  are  known  to  assert 
claim  to  the  land  are  proper  parties.  Tex.  Mex.  Ry.  Co.  v.  Locke.  63  T.  623. 
A.  and  B.  joined  in  the  preparation  of  a  watering  place  for  stock  on  the  land  of 
another.  A.  sued  B.  for  damages  sustained  by  being  prevented  from  using  the 
water,  and  it  was  held  that  the  owner  of  the  land  was  not  a  proper  party.  WI-M 
fall  v.  PtTry,  23  S.  W.  Rep.  740.  Suit  for  land  over  which  a  railway  was  con- 
structed was  brought  by  the  owner  against  the  rail  way  company.  Pending  the 
suit  the  road  was  placed  in  the  hands  of  receivers.  The  receivers  were  made 
parties,  and  objecting  it  is  held  that  they  were  proper  if  not  necessary  parties  to 
tli-  suit.  San  A.  &  A.  P.  Ry.  Co.  v.  Ruby,  80  T.  172  (15  S.  W.  Rep.  1040). 

A.  executed  a  deed  containing  a  covenant  against  incuinbrances  to  B.  for  an 
undivided  one-half  of  a  lot  Subsequently  he  sold  the  entire  lot  to  C.,  leaving  a 
balance  of  the  purchase-price  unpaid.  A.  was  held  to  be  a  proper  party  with  C. 
in  a  suit  by  B.  for  one-half  the  proceeds  of  a  sale  of  the  lot  by  C.  Marshall  v. 
Spillane,  7  Civ.  App.  ",:;•„>  (27  S.  W.  Rep.  162).  See  opinion  for  lengthy  allegations 
in  a  petition  filed  by  the  state,  in  a  suit  brought  under  the  provisions  of  the  art 
of  1883,  known  as  "the  Laud  Fraud  Act,"  under  which  it  was  held  that  the  join- 
der of  all  the  defendants  and  of  all  the  purchasers  of  land  in  one  suit  was  proper, 
it  not  necessary.  In  a  suit  brought  by  the  state  under  the  "Lainl  Frau<l  A< -t." 
mcel  purchases  of  land,  all  persons  in  whose  names  the  purchases  were 
made,  when  the  charge  is  that  many  purchases  were  made  for  the  benefit  of  one 
or  more  of  the  defendants,  are  necessary  parties.  State  v.  Rhomberg,  69  T.  2TJ 
(7  S.  W.  Rep.  195). 

'Mi-lvin  v.  Chancy,  8  Civ.  App.  253  (28  a  W.  Rep.  241X 

« Cannon  v.  McDaniel.  46  T. 

»  Ewell  v.  Anderson,  49  T.  697. 

«  Delespine  v.  Campbell,  45  T 


193  PARTIES   TO   ACTIONS.  [§  178. 

of  the  land,  are  necessary  parties.1  The  general  rule  is,  that  all 
MS  who  claim  an  interest  in  property  on  which  a  lien  is  sought 
to  be  foreclosed  should  be  made  parties.  The  district  court  will 
adjust  the  rights  of  the  respective  parties,  though  the  interest 
claimed  by  some  of  the  parties  may  not  be  such  as  of  itself  to  con- 
fer jurisdiction.2 

An  executor  under  an  independent  will  is  not  a  necessary  party 
to  a  suit,  in  a  controversy  involving  title  between  the  heir  and  one 
who  had  discharged  a  judgment  lien  on  the  land,  the  judgment  hav- 
ing been  rendered  against  the  executor  as  such,  and  a  defective 
sheriff's  deed  executed  to  the  purchaser;  the  object  of  the  suit 
being  to  subrogate  the  purchaser,  who  had  discharged  the  lien,  to 
the  lien  of  the  original  judgment.  If  the  suit  be  between  the  vendee 
of  the  purchaser  at  sheriff's  sale  and  the  heir,  the  purchaser  who 
has  executed  a  deed  with  warranty  may  properly  intervene  and 
have  his  rights  adjudicated.3 

An  attachment  was  levied  upon  personal  property.  The  prop- 
erty was  in  possession  of  a  mortgagee  of  the  defendant  in  attach- 
ment. The  assignee,  under  a  general  assignment  by  the  defendant 
in  attachment  made  subsequent  to  the  mortgage,  tiled  claim  bond 
and  oath,  and  it  was  held  that  in  the  proceedings  to  try  title  to  the 
property  the  mortgagee  in  possession  was  a  proper  party  and 
could  be  brought  in.4  "When  one  holds  the  land  of  another  as  se- 
curity for  a  debt,  the  ultimate  right  of  property  is  with  him  who 
thus  incumbers  the  land,  and  this  right  may  be  levied  on  and  sold 
under  execution.  If  the  owner  who  has  thus  incumbered  the  land 
again  mortgages  it,  and  afterwards,  and  before  foreclosure  of  the 
lien,,  his  interest  is  sold  under  execution,  the  purchaser  succeeds  to 
all  the  rights  of  the  mortgagor;  and  if  he,  or  his  vendee,  is  made  a 
party  to  a  suit  to  settle  the  interest  of  the  respective  parties  in  the 
land  (there  being  no  allegation  that  nothing  was  left  after  paying 
off  incumbrances),  it  is  error  to  dismiss  the  suit  as  to  them,  for 
which  a  judgment  adjudicating  the  rights  of  the  other  parties  will 
be  reversed.5 

1  Slaughter  v.  Owens,  60  T.  668. 

JTempleman  v.  Gresham,  61  T.  50;  Hall  v.  Hall,  11  T.  547;  Peticolas  v.  Car- 
penter, 53  T.  27. 

'Jones  v.  Smith,  55  T.  38& 

•  Dupuy  v.  Ullman,  78  T.  341  (14  S.  W.  Rep.  790). 

•De  La  Vega  v.  League,  64  T.  205.  A  surviving  husband,  there  being  minor 
children  of  the  marriage,  conveyed  in  trust  to  secure  his  own  debt  a  stock  of 
cattle  belonging  in  part  to  the  separate  estate  of  his  wife  and  in  part  commu- 
nity, in  fraud  of  the  administrator  of  the  wife  and  of  the  minor  children.  In  a 
suit  to  enjoin  the  sale  of  the  mortgaged  cattle  the  petition  made  parties  defend- 
ant the  trustee,  the  beneficiary,  and  the  mortgagor.  The  latter  was  not  served 
with  citation  nor  even  noticed  in  the  subsequent  proceedings,  and  it  was  held 


I'AIMllS   TO   ACTIONS.  190 

?  179.  Mortgages,  parties  to  suits  to  foreclose,  etc. 

All  prisons  having  any  interest  in  the  equity  of  redemption  should 
In-  made  parties  to  a  suit  to  foreclose  a  mortgage,  or  to  a  suit  to 
sell  the  mortgaged  property.  The  rule  includes  both  prior  and 
>uhse«juent  inrumliraneers,1  subsequent  purchasers  and  mortgagees. 
J!ut  where  the  original  mortgagor  has  parted  with  his  title,  he  is 
no  longer  a  necessary  party.2  The  holder  of  a  note  secured  by  the 
mortgage  sought  to  be  enforced  at  the  suit  of  the  holder  of  another 
must  be  joined.3  Where  a  mortgage  is  given  to  secure  the 

•  of  several  creditors,  falling  due  at  the  same  time,  the  credit- 
-randing  on  the  same  footing  as  to  priority,  they  are  all  neces- 

sary parties.4 

All  persons  who  may  redeem,  as  a  tenant  for  a  term  of  years,  are 
><ary  parties.5  The  vendee  of  the  mortgagor  is  a  necessary 
party.6  But  where  a  vendee  holding  under  a  bond  for  title  exe- 
cutes a  mortgage  to  a  third  party,  his  vendor  is  not  a  proper  party 
to  a  suit  to  foreclose  the  mortgage,  because  he  has  no  interest  which 
will  be  affected  by  the  decree.7 

(  )ne  who  purchases  an  equity  of  redemption  at  sheriffs  sale,  be- 
fore a  mortgagee  brings  a  suit  to  foreclose,  is  not  affected  by  the 
suit  if  he  is  not  made  a  party.8  Where  a  mortgagor's  equity  of  re- 
demption or  legal  title  to  land  is  sold  to  another,  a  suit  to  foreclose 
the  mortgage  against  the  mortgagor  without  making  the  purchaser 

that  the  case  stood  as  if  discontinued  as  to  him.  He  was.  however,  a  proper 
puny  and  should  have  been  served  with  citation.  Moody  v.  Sraoot,  78  T.  119. 
When  on  a  trial  the  specific  equitable  relief  prayed  for  in  the  pleadings  of  the 
~-ful  party  is  authorized  and  required  under  the  facts  as  found,  it  is  error 
t<>  Disregard  the  prayer  and  enter  a  decree  not  prayed  for.  Hence  if  in  proceed- 
ings by  attachment  an  intervener  attacks  the  claim  of  the  original  plaintiff  for 
fraud,  ami  prays  that  the  proceeds  of  the  attached  property  may  be  applied  to 
the  satisfaction  of  his  own  claim,  and  to  that  of  subsequent  attaching  creditors 
a«-'-'>rding  to  the  priority  of  their  liens,  and  on  the  trial  the  claim  of  the  plaint- 
iff is  adjudged  fraudulent,  it  is  error  to  decree  payment  to  the  plaintiff  of 
su.-h  fund  as  may  remain  after  discharging  the  debt  due  the  intervener,  in  ilis- 

•  1  of  other  attaching  creditors;  and  this  though  such  other  attai-lung  cred- 
itor- have  not  been  made  parties.    In  such  a  case,  before  entering  the  final 

•  •.all  the  attaching  creditors  should  be  made  parties.   When  the  clrtrrinir.a- 
ti"i>  of  priority  of  liens  is  involved,  all  claiming  liens  who  are  interested  in  the 
distribution  of  the  fund  are  necessary  parties.    Cook  v.  Pollard,  70  T.  7v  •:  -  >.  \\  . 


i  Hall  v.  Hall.  11  T.  526;  Mills  v.  Traylor,  30  T.  7;  Nix  v.  Cardwell,  2  U.  C.  200 

-Hall  v.  Hall,  11  T.  526;   Buchanan  v.  Monroe,  22  T.  537;  Mills  v.  Traylor, 
30  T.  7. 

3  Delespine  v.  Campbell,  45  T.  629. 

;  MrDonough  v.  Cross,  40  T.  251. 

»Lockhart  v.  War.l,  -K  T.  'J-,'7;  Andrews  v.  Key,  77  T.  35. 
MI,  It  7.  v.  Garey,  49  T.  49. 

"  Pridgen  v.  Andrews.  7  T.  461. 

L.,  A.  &  T.  Ry.  Co.  v.  Whitaker,  68  T.  630  (5  &  W.  Rep.  448);  Dalian  v. 
Hollacher,  2  App.  C.  C.,  g  52& 


200  PARTIES   TO   ACTIONS.  [§  179.. 

of  his  title  a  party,  and  a  decree  of  foreclosure  and  sale,  have  no> 
effect  upon  the  title  of  such  purchaser  when  there  exists  either  act- 
ual or  constructive  notice  of  his  purchase.  While  the  foreclosure 
proceedings  against  the  mortgagor  do  not  conclude  the  purchaser's 
right  to  redeem,  they  do  not  free  the  land  from  the  lien.  The  pur- 
chaser's title  is  not  strengthened  by  the  foreclosure  proceedings  to 
which  he  was  not  a  party.  While  such  foreclosure  proceedings 
nirainst  the  mortgagor  after  he  had  parted  with  the  equity  of  re- 
demption are  defective  as  a  foreclosure,  still  the  judgment  is  good 
as  a  personal  judgment  against  the  mortgagor,  ascertaining  th& 
amount  of  the  claim,  and  removes  the  operation  of  statutes  of  lim- 
itation upon  the  original  claim  or  cause  of  action.  The  purchaser 
at  sheriff's  sale  under  the  decree  of  foreclosure,  when  sued  by  the 
holder  of  the  equity  of  redemption  not  concluded  by  defective  fore- 
closure suit,  may  reconvene  by  pleading  his  title  by  subrogation  to  the 
mortgage,  and  have  the  land  subjected  to  the  equities  held  by  him.1 

Where  one  purchases  cotton  at  an  execution  sale  on  a  judgment 
in  his  favor,  and  afterwards  a  mortgage  on  the  cotton  is  foreclosed 
without  making  such  purchaser  a  party  to  the  suit,  he  is  entitled  to 
an  injunction  to  enjoin  a  sale  of  the  cotton  under  the  decree  of 
foreclosure.2  It  would  be  allowed  to  join  in  one  suit  allegations  to 
reform  a  mortgage  to  supply  a  defect  from  mutual  mistake,  with 
foreclosure  of  the  instrument  as  corrected.  In  such  a  case  subse- 
quent purchasers  would  be  necessary  parties.3 

It  has  been  held  that  the  holder  of  a  senior  mortgage  is  not  a 
necessary  party  defendant.4  But  he  is  a  proper  party.5 

1  King  v.  Brown,  80  T.  276  (16  S.  W.  Rep.  39).     A  mortgage  covered  a  large 
tract  of  land.    The  mortgagor  subsequently  sold  a  part  of  the  tract.    The  mort- 
gage was  foreclosed  against  the  estate  of  the  mortgagor,  the  purchaser  of  the 
part  not  being  made  a  party.    It  was  held  that  the  purchaser  was  not  affected 
by  such  foreclosure,  and  he  was  not  required  to  return  the  purchase-money  as  a 
condition  for  recovery.    Had  he  been  a  party  he  might  have  defeated  the  claim 
by  limitation;  or  at  least  he  might  have  obtained  an  order  requiring  the  mort- 
gagee to  sell  that  part  of  the  land  not  disposed  of  before  sale  of  his  part.     Brad- 
ford v.  Knowles.  bo  T.  505  (25  S.  W.  Rep.  1117). 

A  receiver  was  appointed  in  New  York  for  a  corporation  which  had  executed 
bonds  secured  by  mortgage  of  its  lands  in  Texas,  and  the  receiver  authorized  to 
issue  receivers'  certificates.  By  agreement  between  the  assignee  of  the  certifi- 
cates and  the  bondholders,  the  certificates  were  established  as  prior  liens  over 
the  mortgage  bonds.  In  an  action  to  foreclose  the  mortgage  it  was  held  that 
the  signing  bondholders  were  necessary  parties  when  the  assignee  of  the  certifi- 
cates intervened  to  claim  his  priority.  Pool  v.  Farmers'  Loan  &  Trust  Co.,  27 
8.  W.  Rep.  744  (7  Civ.  App.  334). 

2  Davis  v.  Diamond.  1  App.  C.  C.,  §  590,  citing  Floyd  v.  Borland,  33  T.  777. 

»  Clark  v.  Gregory,  87  T.  189  (27  S.  W.  Rep.  56).  A  purchaser  from  a  mortgagor 
may  recover  the  land  mortgaged,  in  trespass  to  try  title,  against  parties  holding 
under  a  foreclosure  sale  to  which  he  was  not  a  party.  Morrow  v.  Morgan,  48  T, 
;: '  i. 

« Hague  v.  Jackson,  71  T.  761  (12  S.  W.  Rep.  63). 

»Bexar  Bldg.  &  L.  Ass'n  v.  Newman,  25  S.  W.  Rep.  46t 


§180.]  PARTIES   TO   ACTIONS.  L'"  1 

While  it  is  the  general  rule  that  a  claimant  of  land  under  a  dif- 
ferent title  from  tli;it  under  which  the  mortgagor  held  is  not  a 
proper  party  to  a  foreclosure  suit,  yet  where  it  may  be  necessary, 
in  order  to  render  a  sale  available,  to  remove  a  cloud  from  the  title, 
.illowable  to  join  in  the  foreclosure  suit  the  parties  holding  the 
adverse  claim,  and  to  obtain  a  decree  condemning  such  title.    Such 
proceeding  is  analogous  to  a  suit  in  which  a  creditor  seeks  to  have 
a  fraudulent  conveyance  set  aside  in  order  that  the  property  con- 
i  may  be  sold  at  a  fair  price.     In  such  suit  the  adverse  claim- 
ant is  a  proper  and  necessary  party.1 

§  ISO.  Parties  in  actions  to  foreclose  the  vendor's  lien. 

All  parties  having  an  interest  in  land  on  which  the  foreclosure  of 
a  vendor's  lien  is  sought  are  necessary  parties.2  All  persons  having 
an  interest  in  the  subject-matter  may  join  in  the  suit,  although  they 
may  claim  different  interests.  Two  persons  holding  notes  secured 
by  vendor's  lien  on  the  same  land  may  join  in  an  action  to  recover 
the  amount  due  upon  their  respective  notes  and  to  foreclose  the 
lien.*  In  a  suit  on  a  vendor's  lien  note  by  an  assignee  of  the  note, 
not  only  must  the  payee  who  has  expressly  transferred  the  lien  b& 
made  a  party,  but  the  original  maker  is  a  necessary  and  proper 
party  to  a  decree  of  foreclosure,  and  unless  the  judgment  sets  out 
a  foreclosure  as  to  him,  his  rights  are  not  affected  thereby.4 

The  holder  of  purchase-money  notes  may  properly  make  party  a 
person  who  claims  title  to  the  land  by  virtue  of  a  judgment  against 
the  vendor  subsequent  to  the  execution  of  the  notes,  to  which  the 

» Looney  v.  Simpson,  87  T.  109  (26  S.  W.  Rep.  1065).  In  a  suit  by  injunction  to 
enjoin  a  Male  about  to  be  made  under  a  deed  of  trust,  the  maker  of  the  tru.-t 
deed,  being  directly  interested  in  the  subject-matter,  should  be  made  a  party; 
the  omission  to  make  him  a  party,  objection  being  made,  will  be  cause  for  re- 
versal of  a  judgment  rendered  therein.  Abrahams  v.  Vollbaum,  54  T.  226.  A 
creditor  took  a  deed  of  trust  on  land,  with  no  notice,  actual  or  constructive,  of 
:i  prior  deed  of  the  land.  In  foreclosing  the  lien,  it  was  held,  the  original  vendor 
having  been  adjudged  a  bankrupt,  and  having  parted  with  all  his  inter- 
tin-  first  ili-t-1.  was  not  a  necessary  party;  but  there  should  be  a  judicial  ascer- 
tainment in  such  proceeding  of  the  amount  of  debt  unpaid  for  which  the  fore- 
closure is  made,  McKeen  v.  Sult'-nfu^s.  01  T.  :VJ5. 

Where  the  mortgagor's  entire  interest  in  the  mortgaged  property  had  passed 
from  him  prior  to  his  death,  his  administrator  is  not  a  niT.-ssury  party  to  an 
action  for  foreclosure  wherein  no  personal  judgim-nt  is  sought.  Puckett  v. 
Reed,  3  Civ.  App.  350  (22  S.  W.  Rep.  515).  In  an  action  for  conversion  by  a  seller 
of  goods  against  a  defendant  claiming  under  a  deed  of  trust  from  plaintiff's 
vendee,  neither  the  insolvent  maki-r  of  tln>  deed  of  trust  nor  the  benefit-in ri.-s 
under  the  deed  of  trust  l»-sj<le  defendant  are  necessary  parties.  Harrison  v_ 
Hawley,  7  Civ.  App.  SOS  <2i;  S.  \V.  K,-p.  765). 

-Thompson  v.  (Jrittin.  W  T.  13!»  16  S.  W.  Rep.  410). 

'Wilson  v.  Hanip'on.  ','  I*.  «.'.  -I'Jtj. 

4  Black  v.  Black.  i;-,»  T. 


PARTIES   TO   ACTIONS.  [§  180. 

holder  of  the  notes  was  not  made  a  party  and  which  operates  as  a 
cloud  on  the  title.1 

AY  here  the  vendee  is  dead,  his  heirs  are  necessary  parties.2  Also 
in  a  suit  to  set  aside  a  sale  enforcing  the  vendor's  lien,  and  to  en- 
force the  lien  against  a  subsequent  purchaser.3 

Subsequent  incumbrancers  are  not  necessary  parties  to  a  suit  by 
the  vendor  against  the  vendee  and  a  subsequent  purchaser.  They 

1  Looney  v.  Simpson,  87  T.  109  (26  S.  W.  Rep.  1065). 

There  was  a  judgment  against  H.  in  his  representative  capacity  as  guardian 
of  VV.,  foreclosing  a  vendor's  lien  on  land  deeded  to  H.  as  such  guardian,  and 
under  this  judgment  the  land  was  sold.  W.,  after  coming  of  age,  sued  the  pur- 
chaser for  the  land,  alleging  such  judgment  and  sale  to  be  void,  and  it  was  held 
that  H.  was  not  a  necessary  party  to  this  latter  suit.  Wichita  L.  &  C.  Co.  v. 
Ward,  1  Civ.  App.  307  (21  S.  W.  Rep.  128). 

In  a  suit  to  recover  a  sum  of  money  specified  in  notes  signed  by  the  wife 
alone,  it  was  alleged  by  the  plaintiff  that  they  were  made,  or  agreed  to  be  made, 
by  husband  and  wife,  to  secure  purchase-money  for  land  sold,  and  had  been 
transferred  by  the  plaintiff  to  a  third  party,  for  whose  use,  as  per  agreement 
with  him  when  the  transfer  of  the  notes  was  made,  suit  was  to  be  brought  by 
plaintiff.  It  was  charged  that  the  failure  of  the  husband  to  join  in  the  notes 
was  fraudulent,  and  prayer  was  made  for  the  enforcement,  on  the  land  con- 
veyed, of  the  payment  intended  to  be  secured  by  the  notes,  by  foreclosing  the 
lien.  Since  the  petition  did  not  disclose  that  the  party  to  whom  the  notes  were 
transferred  had  any  other  interest  in  the  suit  than  as  transferee  of  the  notes,  it 
was  held  that  the  suit  could  be  maintained  by  the  vendor  of  the  land,  and  a  judg- 
ment rendered  in  his  favor,  foreclosing  the  lien  on  the  land,  without  regard  to 
the  party  for  whose  use  the  suit  was  originally  brought.  Matlock  v.  Glover,  63  T. 
231. 

M.,  after  the  death  of  his  wife,  sold  a  tract  of  land  of  the  community  property. 
Several  children  of  the  marriage  survived.  M.  procured  deeds  from  his  children 
subsequent  to  his  sale.  The  purchase-money  notes  were  made  to  M.  In  an  ac- 
tion upon  the  notes  and  to  foreclose  the  vendor's  lien  the  defendant  pleaded  the 
want  of  proper  parties,  the  children  of  the  marriage  not  being  made  parties,  and 
it  was  held  that  the  children  were  not  necessary  parties.  Earle  v.  Marx,  80  T.  39 
(15  S.  W.  Rep.  595). 

2  Jackson  v.  Hill,  89  T.  493. 

1  Pitman  v.  Henry,  50  T.  357.  Foreclosure  judgment  upon  a  vendor's  lien 
note  having  been  obtained  against  the  heirs  of  the  deceased  vendee,  who  were 
only  in  possession  of  a  part  of  the  land  (the  vendee  having  sold  a  part  of  it  to 
defendant),  and  a  sale  under  the  judgment  not  realizing  the  amount  of  the 
judgment,  but  leaving  a  part  of  it  unpaid,  in  a  suit  by  the  plaintiff  against  the 
owners  of  the  remainder  of  the  land  to  foreclose  his  vendor's  lien  thereon,  and 
make  it  liable  for  the  unpaid  remainder  of  the  judgment,  the  heirs  of  the  orig- 
inal vendee  were  not  necessary  parties.  They  had  been  concluded  by  the  former 
judgment,  and  had  no  interest  to  be  affected  by  the  present  suit.  The  prayer 
was  for  a  foreclosure  upon  the  land  claimed  by  defendants  for  the  balance  due, 
on  the  judgment.  This  was  relief  to  which  plaintiff  was  not  entitled.  Defend- 
ants not  being  bound  by  the  former  judgment,  the  part  of  the  land  they  claimed 
could  not  be  separated  from  the  remainder  of  the  tract  and  sold  to  pay  the  bal- 
ance due  on  the  judgment.  The  right  of  the  plaintiff  was  to  have  the  whole 
tract  resold,  as  against  the  defendants,  to  pay  the  whole  amount  of  the  debt, 
«o  that  the  defendants  might  enforce  any  right  which  they  had,  unaffected  by 
the  other  foreclosure,  Richardson  v.  Howe,  3  Civ.  App.  279  (22  S.  W.  Rep.  1003). 


§  180.]  PARTIES    TO 

may  make  themselves  parties,  and  are  not  affected  by  the  judgment 
if  not  made  parties.1 

In  a  suit  to  enforce  the  vendor's  lien,  a  subsequent  vendee  in  pos- 

'n  and  claiming  under  a  recorded  deed  is  a  necessary  party ; 
and  the  purchaser  at  a  foreclosure  sale  to  which  suit  such  vendee 

•iot  a  party  cannot  maintain  an  action  of  trespass  to  try  title 

>t  such  vendee.2  When  a  vendor  holding  a  mere  equitable 
lien  for  purchase-money  seeks  to  enforce  his  lien  against  the  vendee, 
a  Mibseijuent  purchaser  holding  a  deed  for  the  land,  and  in  posses- 
sion thereof,  is  a  necessary  party.  But  if  neither  the  party  in  pos- 

•n  nor  his  vendor  had  more  than  a  mere  equity,  and  the  party 
in  possession  was  charged  with  notice  by  the  recitals  of  the  deed 
under  which  he  claimed  that  the  purchase-money  notes  had  not 
been  paid,  he  was  not  a  noc»-»ary  party  to  proceedings  to  foreclose.3 
"Where  a  trial  amendment  is  filed  \>y  a  plaintiff  after  a  purchase  by 
,  a  third  party  from  his  vendee  of  the  land  in  controversy,  setting 
up  for  the  first  time  a  vendor's  lien,  the  rights  of  such  purchaser 
will  not  be  affected  unless  he  be  joined  as  a  party.4 

1  Chapman  v.  Lacour,  2o  T.  94.  John  Evans  was  the  assignee  of  a  vendor's 
lien  note,  <lati-<l  November  23,  1886,  and  signed  by  Van  Evans  and  wife.  He  ob- 
1  foreclosure  judgment;  the  land  was  sold  thereunder,  and  he  became  the 
purchaser  and  was  placed  in  possession.  B.,  E.  &  Co.  were  the  holders  of  two 
deeds  of  trust  made  by  Van  Evans  and  wife,  dated  January  24  and  February  8, 
1890,  to  secure  a  debt  due  B.,  E.  &  Co.,  which  was  foreclosed  in  Galveston,  with 
or.ler  that  the  purchaser  be  placed  in  possession.  At  a  sale  made  thereunder 
B..  E.  &  Co.  became  the  purchasers.  This  suit  was  to  enjoin  the  sheriff  of  Chero- 
kee county,  Reagan,  from  executing  the  writ  of  possession  from  Galveston 
county.  Though  B.,  E.  &  Co.  were  incumbrancers  prior  to  the  institution  of 
John  Evans'  foreclosure  suit,  and  though  he  was  only  the  assignee  of  the  note, 
with  the  superior  title  to  the  land  held  by  his  assignor  in  trust  for  him,  unless 
he  knew  of  the  subsequent  lien  of  B.,  E.  &  Co.  he  was  not  required  to  make 
them  parties.  Mortgagees  were  not  in  possession  of  the  land,  and  the  registra- 
tion of  their  mortgages  was  not  notice  of  the  lien,  either  to  the  vendor  of  the 
land  or  his  vendee,  John  Evans.  He  was  not  asserting  or  claiming  any  rights 
under  the  mortgagors,  Van  Evans  and  wife.  Reagan  v.  Evans,  2  Civ.  App.  35 
W.  R..J..  • 

*Langdon  v.  McCanless,  2  U.  C.  662;  Ballard  v.  Carter.  71  T.  161  (9  S.  W.  Rep. 
irt.-r  v.  Attou-ay,  46  T.  108;  Peters  v.  Clements,  4<i  T.  \\:>:  Bridges  v.  Rey- 
11. . I  Is  in  T.  -J"l.  Preston  v.  Breedlove,  45  T.  48;  Burks  v.  Watson,  48  T.  107. 

'Robinson  v.  Black.  .Vi  T.  215. 

«  Martin  v.  Ft.  \V.  Express  Co.,  2  U.  C.  242.  A  creditor  alleged  in  her  petition 
that  her  debtor  had  fraudulently  conveyed  a  tract  of  land  to  K. :  that  K.  sold 
to  H.,  retaining  a  vendor's  lien;  and  prayed  that  the  vendor's  lien  retaint-'l  \>y 
K.  be  foreclosed  for  her  benefit.  Before  this  remedy  was  sought,  H.  conveyed 
to  W.,  who  was  a  purchaser  for  value  without  notice,  and  it  was  held  that 
where  neither  party  has  the  legal  title,  the  purchaser  from  the  vendee  is  a  nec- 
OOOQTJ  party  to  a  suit  to  foreclose  a  lien  for  the  purchase-money:  that  W.  could 
not  be  affected  by  a  judgment  in  favor  of  the  creditor  unl»->  -lu-  was  made  a 
party  to  the  suit  Wort  ham  v.  Boyd,  66  T.  401  (1  S.  W.  Rep.  109). 

K.,  holding  a  joint  note  given  in  part  payment  for  a  tract  of  land,  which  note 
had  been  fully  paid,  and  also  a  valid  claim  for  $160  secured  by  a  vendor's  lien 


204  PARTIES   TO   ACTIONS.  [§  181. 

The  subvendee  of  a  vendee  who  owes  the  purchase-money  on 
land  he  conveys  is  not  a  necessary  party  to  foreclosure  proceedings. 
A  subvendee  not  made  a  party  to  proceedings  to  enforce  a  vendor's 
claim  for  money  by  a  sale  of  the  land  has  the  right  to  pay  for  the 
land  and  thus  obtain  title  to  it;  and  he  will  be  protected  whether 
relief  be  sought  in  a  suit  against  a  purchaser  at  the  sale  to  enforce 
the  right  of  redemption,  or  to  establish  the  right  to  pay  for  and  to 
have  the  land,  or  be  set  up  by  him  in  an  action  by  the  purchaser  to 
recover  the  land.  The  equities  of  a  subvendee  not  made  a  party 
to  the  proceedings  are  as  strong  against  a  purchaser  at  such  saley 
having  knowledge  of  his  rights,  as  they  are  between  the  original 
vendor  and  vendee.1 

§  181.  Laborers'  and  mechanics'  liens. 

In  a  suit  to  enforce  a  lien  against  a  railroad  in  favor  of  mechan- 
ics, laborers  or  operatives,  the  plaintiff  is  not  required  to  make  other 

on  one-half  of  the  same  land,  executed  by  L.,  a  subsequent  purchaser  of  such 
half,  wrongfully  brought  suit  on  the  note  against  the  makers  thereof,  and  under 
a  judgment  of  foreclosure  had  therein  the  entire  tract  was  sold  to  A.,  to  whom 
K.  then  transferred  the  lien  given  by  L.  As  L.  was  not  a  party  to  the  foreclos- 
ure suit,  and  the  lie«  given  by  him  was  not  adjudicated  therein,  it  was  held  that 
A.  was  not  precluded  from  asserting  such  lien  against  the  part  of  the  land  cov- 
ered by  it.  At  the  time  L.  bought  one-half  the  land  and  executed  the  lien  that 
was  transferred  to  K.,  and  then  to  A.,  he  executed  in  addition  a  separate  note  for 
$85,  also  carrying  a  vendor's  lien  on  the  one-half  purchased.  This  note  was  sold 
to  J.,  who  brought  suit  thereon,  but  without  making  K.  or  A.  parties  thereto, 
and  himself  bought  the  land  under  foreclosure  of  his  lien.  It  was  held  that  the 
vendor's  liens  emanating  from  L.  were  of  equal  dignity,  and  that  J.'s  rights 
under  his  judgment  and  purchase  were  not  superior  to  those  of  L.  as  holder  of 
the  lien  transferred  to  him;  both  J.  and  A.  being  entitled  to  share  the  proceeds 
of  a  sale  of  the  land  in  proportion  to  their  claims  under  L.  Jackson  v.  Andrews, 
3  Civ.  App.  503  (22  S.  W.  Rep.  1045). 

'Pierce  v.  Moreman,  84  T.  596  (20  S.  W.  Rep.  821);  Ufford  v.  Wells,  52  T.  612; 
Robinson  v.  Kampmann,  5  Civ.  App.  605  (24  S.  W.  Rep.  529).  A  lot  was  con- 
veyed in  1854  by  a  city,  with  a  vendor's  lien  retained  to  secure  unpaid  purchase- 
money.  The  lot  was  sold  by  the  city  in  1875  under  a  foreclosure  of  the  lien. 
An  heir  of  a  subvendee  under  the  first  vendee  (neither  he  nor  his  ancestor  being 
a  party  to  the  foreclosure)  brought  his  suit,  four  years  after  his  majority,  against 
the  executrix  of  the  purchaser  at  the  foreclosure.  He  was  held  not  guilty  of 
laches  in  bringing  his  suit,  and  could  redeem  his  interest  in  the  lot  by  paying 
his  share  of  the  purchase-money  at  the  foreclosure,  with  interest.  Robinson  v. 
Kainj.-iiann,  5  Civ.  App.  605  (24  S.  W.  Rep.  529).  Where  a  vendee  of  land,  which 
is  subject  to  a  vendor's  lien,  sells  a  part  of  it  to  a  third  person,  and  the  latter 
subsequently  accepts  a  warranty  deed  to  a  part  of  his  purchase  from  another 
who  claims  to  be  the  owner,  such  third  person  is  a  necessary  party  to  a  suit  to 
foreclose  the  original  vendor's  lien.  Faubion  v.  Rogers,  66  T.  472  (1  S.  W.  Rep.  166). 

P.,  a  subvendee  of  land  subject  to  the  vendor's  lien,  brought  suit  against  pur- 
chasers of  the  land  under  foreclosure  proceedings  in  which  he  was  not  made  a 
party,  although  his  deed  was  on  record  and  he  in  possession.  Suit  was  brought 
promptly  and  tender  made  of  the  amount  of  the  foreclosure  sale,  with  offer  to 
pay  further  as  the  court  should  .ad judge.  It  was  held  that  the  plaintiff  had  the 
right  to  redeem  the  land  and  was  entitled  to  a  decree  in  his  favor.  Pierce  v. 
Moreman,  84  T.  596  ('20  S.  W.  Rep.  821). 


•§   181.]  P AIM  IK*    TO    ACTIo.N-. 

lien-holders  defendants,  hut  they  may  interveneaml  become  parties 
to  the  suit  and  have  their  respective  rights  adjusted  and  determined 
by  the  court.1 

In  an  action  by  an  assignee  of  due-bills  issued  by  a  subcontractor 
to  laborers  in  constructing  a  railway,  the  action  being  to  recover 
the  amount  due  and  to  enforce  the  lien,  the  contractor  and  subcon- 
tractor are  necessary  parties.2  But  where  the  action  is  not  brought 
under  the  statute,  but  only  to  recover  a  sum  paid  out  by  plaintitTs 
at  the  request  of  the  railroad  company  to  take  up  time-checks  issued 
by  a  contractor,  the  action  will  lie  against  the  company  without 
joining  the  contractor.' 

The  statute  giving  a  lien  to  laborers,  etc.,  on  railroads  creates 
such  privity  between  them  and  the  company  as  entitles  them  to 
maintain  an  action  directly  against  the  company  to  enforce  the  lien.4 

A  mechanic's  lien  against  community  property  may  be  enforced 
against  the  husband's  interest  without  joining  the  wife's  heirs.5  It 
seems  that  where  a  mortgagee  of  the  property  is  not  joined,  he  may 
restrain  a  sale  of  the  property  in  a  suit  alleging  that  the  judgment 
is  excessive  through  collusion.6  The  statute  makes  it  the  duty  of 
contractors  to  defend  any  action  to  enforce  a  lien,  at  their  own  ex- 
pense.7 Prior  to  this  amendment,  the  owner  was  required  to  fur- 
nish the  contractor  with  a  copy  of  the  contract  account,  and  the 
contractor  was  then  required  to  give  notice  within  ten  days  of  his 
intention  to  dispute  the  claim.  It  was  held  under  this  statute  that 
the  contractor  was  a  necessary  party,  except  in  cases  where  he 
tailed  to  give  the  notice  of  contest  within  the  time  prescribed.8  It 
is  recommended  that  a  subcontractor,  in  suing  the  owner  to  enforce 
the  lien,  make  his  employer  a  party.  It  is  suggested,  also,  that  it 
miirht  be  necessary  to  make  other  lien-holders  parties,  in  order  to 
adjust  their  priorities  and  to  settle  their  validity.9 

In  a  suit  to  recover  a  personal  judgment  for  the  construction  of 
a  house,  and  to  enforce  the  builder's  lien  on  the  interest  of  the  party 

i  R.  S.  3313. 

-  Austin  &  N.  W.  Ry.  Co.  v.  Rucker,  59  T.  587;  G.,  H.  &  S.  A.  Ry.  Co.  v.  Mo- 

06,  •->  App.  C.  C.,  S  7«a 
War,-  v.  <;..  II.  A-  S.  A.  Ry.  Co.,  2  App.  C.  C.,  §  740. 

n*tin  A:  N.  \V.  Ry.  Co.  v.  Daniels,  62  T.  70. 

5  Pool  v.  Wedemeyer,  56  T.  287.    Where  two  persons  owned  separate  parts  of  a 
l«>t  iii  severally,  and  entered  into  a  joint  contract   with  a  builder  to  build  :i 
house  upon  the  lot,  and  a  material-man  having  fixed  a  lien  upon  the  lot  brought 
suit  against  the  owners  jointly,  and  afterwards,  by  supplemental  petition,  al- 
iped a  s.-tt  1« m-  nt  with  one  of  them,  it  was  held  that  he  might  dismiss  a-  to 
that  one,  and  enforce  his  lien  against  the  other.    C.  B.  Carter  Lumber  Co.  v. 
Simp--,,.  83  T.  370  (18  S.  W.  K.-p.  M'J>. 
«Whiteselle  v.  Texas  Loan  Agency,  27  a  W.  Rep.  309. 
7  R.  a  8808. 
"Thomas  v.  Ownby,  1  App.  C.  C.,  §  1212. 

*  Waldortl  v.  Scott,  46  T.  1. 


206  PARTIES   TO   ACTIONS.  [§  182. 

in  the  land  for  whom  it  was  constructed,  it  is  proper  to  join  as  a 
defendant  in  the  same  suit  any  other  party  claiming  an  interest  in 
the  land,  so  as  to  adjust  in  one  action  the  liens  and  equities  of  all 
parties.  In  such  an  action  no  judgment  can  be  rendered  enforcing 
a  lien  against  parties  defendant  claiming  an  interest  in  the  land, 
who  were  not  parties  to  the  building  contract,  and  on  whom  no 
copy  of  the  bill  of  particulars  was  served.1  Where  suit  is  brought 
for  the  possession  of  real  property,  on  which  one  party  claims  a 
builder's  lien  and  another  party  claims  a  lien  for  material  furnished, 
the  claims  being  denied  by  plaintiff,  who  is  the  owner  of  the  prop- 
erty,  both  lien  claimants  may  be  joined  as  defendants ;  nor  is  it  im- 
proper to  seek  in  the  same  action  a  recovery  on  a  moneyed  demand 
connected  with  and  growing  out  of  the  same  transaction.2 

§  182.  Subsequent  purchasers. 

In  a  suit  to  foreclose  a  mortgage  a  subsequent  purchaser  is  a  nec- 
essary party.8  In  a  suit  by  the  vendor  against  the  vendee  and  a 
subsequent  purchaser  for  the  purchase-money  and  to  enforce  the 
vendor's  lien,  subsequent  incumbrancers  are  not  necessary  parties. 
They  may  make  themselves  parties,  and  are  not  bound  by  the  judg- 
ment if  not  parties.4  Though  subsequent  purchaser  is  a  proper  party 
in  all  suits  to  enforce  a  prior  lien,  yet  he  may  not  be  a  necessary 
party  except  to  bar  his  equity  of  redemption.  If  the  superior  title 
remains  in  the  plaintiff  in  a  suit  to  foreclose,  and  the  title  of  the 
subsequent  purchaser  is  subordinate  thereto,  the  mere  fact  that  he 
was  not  made  a  party  to  the  enforcement  of  the  lien  for  the  pur- 
chase-money, against  the  original  vendees,  although  it  might  oper- 
ate to  prevent  any  prejudice  to  his  right  to  the  equity  of  redemp- 
tion, yet  could  not  prejudice  the  superior  title  of  the  plaintiff.  If 
plaintiff's  title  was  superior  before  the  judgment  of  foreclosure  and 
the  sale  thereunder  to  himself,  this  would  not  make  it  less  so.  The 
cases  in  which  a  subsequent  purchaser  or  incumbrancer,  if  known, 
has  been  held  to  be  a  necessary  party  to  a  suit  to  foreclose  a  prior 
lien  in  order  to  affect  his  title,  are  those  in  which  he  held  under  the 
superior  legal  title,  subject  only  to  a  claim  for  a  lien  to  be  enforced, 
as  in  cases  of  strictly  vendors'  liens  arising  by  implication  upon  an 
absolute  deed  for  land,  or  mortgages  given  to  secure  a  debt  other 
than  for  the  purchase-money.5 

A  subsequent  vendee  in  possession  is  not  a  necessary  party  to  a 
suit  to  foreclose  an  express  lien  reserved  in  a  deed  to  his  vendor, 

i  Adams  v.  Cook,  55  T.  161. 

8  Jones  v.  Ford,  60  T.  127. 

'Hall  v.  Hall,  11  T.  526;  Buchannan  v.  Monroe,  22  T.  542. 

*  Chapman  v.  Lacour,  25  T.  94. 

•Ufford  v.  Wells,  52  T.  612. 


§  183.]  PAKTIES   TO    ACT1 

and  the  purchaser  at  sheriffs  sale  under  the  judgment  of  foreclos- 
ure, though  a  third  party,  may  maintain  trespass  to  try  title  against 
such  subsequent  vendee  in  possession,  who  was  not  a  party  to  the 
suit  to  foreclose.1 

Under  the  law  of  this  state  execution  does  not  issue  upon  a  judg- 
ment against  an  administrator,  but  it  is  certified  to  the  county 
court  for  observance.  The  issues  concluded  by  the  judgment  can- 
not be  reopened  in  the  county  court,  its  duties  being  those  in  rela- 
tion to  classification  and  payment.  Those  proceedings  are  to  be 
regarded  as  administrative,  and  a  continuation  of  the  original  suit 
in  which  the  judgment  was  rendered,  so  that  purchasers  after  the 
institution  of  that  suit  are  unnecessary  and  improper  parties.2 

In  a  suit  to  cancel  a  deed,  brought  by  the  vendor,  a  subsequent 
purchaser  from  the  vendee  is  not  a  necessary  though  a  proper  party 
defendant.'  The  mortgagor's  deed  for  the  mortgaged  land  executed 
subsequent  to  the  mortgage  was  duly  recorded.  After  such  record 
the  grantee  in  the  deed  is  a  necessary  party  in  foreclosure  proceed- 
ings. A  decree  of  sale  in  proceedings  to  which  he  was  not  a  party 
does  not  affect  his  rights.  The  rule  here  stated,  and  the  effect  of  the 
foreclosure  decree,  are  distinguishable  from  cases  for  decree  enforc- 
ing the  vendor's  lien.  In  these  cases  the  purchaser  at  the  sale  may 
recover  the  land,  unless  the  original  purchase-money  be  paid,  al- 
though the  junior  purchaser  was  not  party  to  the  foreclosure  suit.4 
In  a  suit  to  correct  a  mistake  in  an  instrument,  and  to  foreclose 
the  instrument  as  corrected,  subsequent  purchasers  are  nece- 
parties.5  , 

g  183.  Purchasers  pendente  lite. 

A  purchaser  of  property,  pending  litigation  in  reference  thereto, 
is  bound  by  the  judgment  rendered  in  the  suit  the  same  as  if  he 
hail  been  a  party  to  the  suit.6  A  purchaser  of  land  lite 

can  make  no  defense  which  his  vendor  could  not  interpose.7 

All  judgments  are  to  be  considered  in  the  light  of  laws  providing 
a  remedy  and  a  time  within  which  they  may  be  revrr«'<l.  if  er- 
roneous, by  an  appellate  jurisdiction,  and  all  persons  voluntarily 
purchasing  during  such  time  are  purchaser-  '</  /<V>'.8  One  who 

1  Foster  v.  Powers,  64  T.  247. 

*  Paxton  v.  Meyer.  67  T.  96  (2  S.  W.  Rep.  817}. 
'Silberberg  v.  Pearson,  75  T.  387  (12  S.  W.  Rep.  850). 

« Bradford  v.  Knowles,  86  T.  505  (24  s.  \V.  i;,.,,.  1095;  25  S.  W.  Rep.  1117X 

•  Clark  v.  Gregory.  87  T.  189  (27  S.  W.  Rep.  56). 

•Willis  v.  Ferguson.  59  T.  172;  Flanagan  v.  Pearson,  61  T.  SO',1:  Wnrtham  v. 
Boyd,  66  T.  401  (1  S.  W.  Rep.  109);  Dwyer  v.  Rippetoe,  7'2  T.  520  (10  S.  W.  Rep. 
668). 

7  Evans  v.  Welborn.  74  T.  530  (12  a  W.  Rep.  230). 

8  Harle  v.  Langdon,  60  T.  555. 


208  PARTIES   TO   ACTIONS.  [§  183. 

luiys  from  a  party  during  the  pendency  of  a  suit  involving  title  to 
land,  or  who  buys  between  the  time  a  final  judgment  is  rendered 
therein  and  the' time  an  appeal  or  Avrit  of  error  is  perfected,  or 
pending  cither,  is  a  purchaser  pendente  lite,  and  a  judgment  ulti- 
mately rendered  will  not  only  affect  him  with  notice  of  the  adverse 
claim,'  but  will  bind  him  as  it  will  a  party  to  the  record,  and  through 
process  under  that  judgment  he  may  b,e  evicted.  If,  however,  the 
judgment  be  rendered  in  favor  of  the  vendor  of  one  who  purchases 
'  r,  l^l.  nt,  r,i, ,  then,  while  such  purchaser  will  be  charged  with  notice 
of  t  he  adverse  party's  right,  yet  he  will  not  be  bound  by  a  judgment 
rendered  in  any  subsequent  suit  on  the  same  cause  of  action,  unless 
he  is  made  a  party  thereto;  and  this,  though  the  real  origin  of  his 
right  may  be  subsequent  in  point  of  time  to  the  date  of  the  judg- 
ment thus  rendered.1 

One  who  purchases  land  pending  a  suit  in  which  the  title  to  the 
land,  or  a  lien  upon  it,  is  involved,  does  so  subject  to  the  final  judg- 
ment in  the  cause,  whether  he  be  made  a  party  to  the  suit  or  not. 
But  his  title  is  not  affected  unless  the  suit  terminates  adversely  to 
his  vendor.  If  dismissed  or  abandoned,  no  subsequent  suit  founded 
upon  the  same  cause  of  action,  much  less  one  seeking  a  different 
remedy  for  different  reasons  against  the  same  land,  can  interfere 
with  the  purchaser's  title,  unless  he  be  made  a  party  thereto.  The 
abandonment  of  one  cause  of  action  and  the  adoption  of  a  new  one, 
by  amendment,  is,  in  effect,  the  dismissal  of  the  former  suit  and  the 
commencement  of  a  new  one,  and  all  parties  interested,  not  already 
before  the  court,  must  be  served  in  order  to  be  bound  by  the  newly- 
sought  decree.  All  defenses  accruing  down  to  the  date  of  the 
amendment  may  be  pleaded  in  bar  of  the  action,-  It  has  been  held 
that  a  plaintiff  cannot  set  up  a  new  equity  so  as  to  affect  a  purchaser 
•who  bought  previous  to  the  filing  of  the  amendment  in  which  it  is 
asserted,  though  the  prayer  for  relief  be  not  changed.  Much  less 
will  the  amendment  affect  such  a  purchaser  if  the  equity  be  differ- 
ent and  contradictory  of  the  original  bill,  and  the  relief  be  of  a  dif- 
ferent character.2 

1  Randall  v.  Snyder,  64  T.  350;  Moore  v.  Moore,  67  T.  293  (3  S.  W.  Rep.  284). 

-  Wortham  v.  Boyd,  66  T.  401  (1  S.  W.  Rep.  109);  2  Pom.  Eq.,  §  634;  Stone  v. 
Connelly,  1  Met.  (Ky.)  654  A  purchaser  of  property  covered  by  an  attachment 
lien  created  by  a  suit  in  which  he  was  not  a  party,  who  bought  before  the  levy 
of  the  attachment,  is  not  defeated  by  a  sale  under  a  judgment  foreclosing  that 
lit-n.  But ..  purchaser  after  the  levy  of  an  attachment  is  a  purchaser  pendente 
lite;  and  in  case  the  attachment  lien  be  foreclosed  by  a  judgment  against  an 
administrator  which  is  certified  to  the  county  court  for  observance,  a  sale  under 
an  order  based  upon  that  judgment  and  granted  upon  an  application  to  which 
li-  was  not  a  party  will  conclude  his  right,  Paxton  v.  Meyer,  67  T.  96  (2  S.  W. 
Rep.  817).  "While  a  purchaser  pendente  lite  is  bound  by  the  judgment  rendered 
in  the  cause  in  reference  to  the  property  in  litigation  which  is  purchased  by 
him,  his  rights  are  not  affected  by  proceedings  seeking  only  a  moneyed  judg- 


§  183.]  PARTIES   TO    ACTI' 

A  purchaser  fn>m  a  defendant  after  suit  may  pn.perly  make  him- 
self a  party  defendant  in  an  action  of  trespass  to  try  title.1  A  pur- 
chaser of  land  after  his  vendor  had  prepared  a  petition  in  a  suit  to 
recover  it,  but  before  the  filing  of  the  petition,  is  not  a  purchaser 
pendent'-  ///<v  he  cannot  make  himself  a  party  plaint  ill'  in  the  suit 
on  the  death  of  his  vendor  until  the  heirs  or  legal  representatives 
of  the  original  plaintiff  are  first  made  parties.2 

Where  one  buys  a  cause  of  action  after  suit  is  brought,  he  buys 
subject  to  the  final  adjudication  between  the  original  litigants, 
and  is  not  a  necessary  party  to  the  suit.  The  fact  that  one  sold 
all  his  interest  in  the  partnership  property  to  his  partner,  after 
the  institution  of  the  suit,  would  not  render  a  change  of  parties 
necessary.1 

ment  apiinst  the  vendor  and  having  no  reference  to  the  property  purchased. 
Nor  would  the  fact  that  an  attachment  which  had  been  quashed  was  once  lev- 
ied on  the  land  which  was  bought  pending  proceedings  to  obtain  a  moneyed 
judgment  constitute  the  purchaser  a  purchaser  pendente  lite,  Willis  v.  Fergu- 
son, 59  T.  172. 

1  Clay  Co,  Land  Co.  v.  Wood,  71  T.  460  (9  S.  W.  Rep.  340). 

2  Howard  v.  McKenzie,  54  T.  171.    While  it  is  not  clear  that  a  judgment  cred- 
itor who  has  purchased  the  defendant's  land  under  his  judgment  is  a  necessary 
party  to  a  suit  brought  to  establish  and  substitute  a  deed  to  another  from  the 
judgment  debtor,  ;nitr<l;iting  his  judgment,  under  the  acts  of  April  14,  1874,  and 
July  18,  1876  (General  Acts  1876,  pp.  45-47:  R,  S.  4594,  4595),  he  is  undoubtedly  a 
proper  party,  and  if  not  made  a  party  would  not  be  bound  by  the  judgment  sub- 
stituting the  deed.    Lanier  v.  Ferryman,  59  T.  104. 

»R  C.  Evans  Co.  v.  Reeves,  6  Civ.  App.  254  (26  a  W.  Rep.  219).  In  a  suit  of 
trespass  to  try  title  by  L.,  against  W.  as  defendant  and  M.  as  intervenes  W.  re- 
covered two  hundred  acres  of  the  land,  M.  the  remaining  four  hundred  and 
twenty  acres,  and  plaintiff  nothing;  the  judgment  reciting  that  should  W.  and 
M.  fail  to  designate  the  boundaries,  or  have  surveyed  by  agreement  the  two 
hundred  acres  adjudged  to  W.  within  one  month  from  adjournment  of  court, 
"  then  —  —  are  hereby  appointed  commissioners  of  partition  to  allot  said  two 
hundred  acres  to  W.,  and  report  their  action  to  the  next  term  of  this  court.'' 
No  division  was  made  by  agreement,  and  no  commissioners  were  appointed  to 
make  it,  nor  was  any  writ  of  possession  issued.  Within  the  two  years  allowed 
for  suing  out  writ  of  error,  plaintiff  L.  compromised  with  M.,  each  to  take  one- 
half  (undivided)  of  the  four  hundred  and  twenty  acres  adjudged  to  M.,  who 
afterwards  conveyed  his  interest  to  B.  and  to  other  parties.  W.  having  died,  L. 
filed  suit  for  partition  more  than  three  years  after  the  judgment,  asking  that  t 
be  carried  out  and  his  two  hundred  and  ten  acres  set  apart  to  him,  to  which  K 
and  W.  answered,  claiming  all  land,  and  setting  up  the  three,  five  and  ten  years' 
limitations.  L.  changed  the  form  of  his  action  from  one  of  partition  to  one  of 
trespass  to  try  title  and  partition,  recognizing  the  rights  of  the  parties  to  be  the 
same  as  alleged  in  his  original  petition.  It  was  held  immaterial  that  L.,  after 
the  institution  of  the  second  suit,  had  conveyed  his  interest  in  the  land  to  an- 
other person,  since  a  purchaser  pendente  lite  need  not  be  made  a  party  to  the 
record.  Nor  was  it  material  that  L.,  prior  to  the  judgment  in  the  original  suit, 
had  conveyed  his  interest  to  one  C,,  since  his  subsequent  compromise  with  M. 
reinvested  him  with  sunirirnt  title  to  maintain  this  suit  Bailey  v.  Laws,  3  Civ. 
App.  529  (23  S.  W.  Rep.  20). 
14 


PARTIES   TO   ACTIONS.  [§184:. 

§  184.  Action  to  quiet  title  against  a  non-resident,  unknown  or  tran- 
sient person. 

An  action  may  be  brought  and  prosecuted  to  final  decree,  judg- 
ment or  order,  by  any  person  claiming  a  right  or  interest  in  or  to 
any  property  in  this  state,  against  any  person  or  persons  who  are 
non-residents  of  this  state,  or  whose  place  of  residence  is  unknown, 
or  who  are  transient  persons,  who  claim  an  adverse  estate,  or  inter- 
est in,  or  who  claim  any  lien  or  incumbrance  on  said  property,  for 
the  purpose  of  determining  such  estate,  interest,  lien  or  incum- 
brance, and  granting  the  title  to  said  property,  or  settling  the  lien 
or  incumbrance  thereon.  Such  action  may  be  maintained  by  any 
such  person  whether  he  is  in  actual  possession  of  such  property  or 
not,  and  service  on  the  defendant  or  defendants  may  be  made  by 
publication  of  the  writ  or  notice  of  the  same,  as  is  now  or  here- 
after may  be  provided  by  law  for  publication  of  citation  against 
non-residents,  persons  unknown  or  transient  persons. 

The  pleadings  in  such  case  must  set  forth  the  title  of  the  com- 
plainant, as  well  as  the  claim  of  the  defendant,  if  known,  and  such 
proceedings  must  be  had  in  the  action  as  may  be  necessary  to  fully 
settle  and  determine  the  question  of  right  or  title  in  and  to  said 
property  between  the  parties  to  the  suit,  and  to  decree  the  title  or 
right  of  the  party  entitled  thereto;  and  the  court  may  issue  the  ap- 
propriate order  to  carry  the  decree,  judgment  or  order  into  effect. 

No  judgment  by  default  can  be  taken  in  such  case  by  reason  of 
the  failure  of  the  defendant  to  answer,  but  the  facts  entitling  the 
plaintiff  to  judgment  must  be  exhibited  to  the  court  on  the  trial, 
and  a  statement  of  the  facts  must  be  filed  as  may  be  provided  by 
law  in  suits  against  non-residents  of  this  state  where  no  appearance 
has  been  made  by  them.  In  case  suit  shall  be  for  the  extinguish- 
ment of  any  lien  or  claim  for  money  on  said  property  that  may  be 
held  by  the  defendant,  the  amount  thereof,  with  interest,  must  be 
ascertained  by  the  court,  and  must  be  deposited  in  the  registry  of 
the  court,  subject  to  be  drawn  by  the  defendant  or  defendants  en- 
titled thereto;  but  in  such  case  no  decree  will  be  entered  until  the 
money  is  deposited,  which  fact  must  be  noted  in  the  decree. 

The  judgment  of  the  court  is  received  in  evidence,  under  the  rules 
governing  evidence  that  may  be  established  by  law,  and  is  binding 
on  the  parties  thereto  concerning  the  matters  determined.1 

A  state  is  allowed  to  settle  titles  to  land  lying  within  its  terri- 
tory, even  against  non-resident  defendants  or  unknown  heirs;  and 
the  state  has  the  right  to  prescribe  the  procedure  and  methods  by 
which  such  results  are  to  be  accomplished.2  A  state  has  control 

1 R.  S.  1504a-1504/.    For  the  statutory  provision  requiring  the  filing  of  a  state- 
ment of  the  evidence,  see  R.  S.  1346. 
2  Sloan  v.  Thompson,  4  Civ.  App.  419  (23  S.  W.  Rep.  613). 


-.'».]  1'AI:  I'll 

over  property  within  its  limits;  and  the  condition  of  ownership  of 
real  estate  therein,  whether  the  owner  be  stranger  or  citi/.en,  is  sub- 
jective to  its  rules  concerning  the  holding,  the  transfer,  liabilitv  to 
obligations  private  or  public,  and  the  modes  of  establishing  titles 
thereto.  It  cannot  bring  the  person  of  a  non-resident  within  its 
limits  —  its  process  goes  not  out  beyond  its  borders, —  but  it  may 
determine  the  extent  of  his  title  to  real  estate  within  its  limits;  and 
for  the  purpose  of  such  determination  may  provide  any  reasonable 
methods  of  imparting  notice.  The  well-being  of  every  community 
requires  that  the  title  to  real  estate  therein  shall  be  secure,  and  that 
there  be  convenient  and  certain  methods  of  determining  any  un- 
settled questions  respecting  it.  The  duty  of  accomplishing  this  is 
local  in  nature.  ...  It  remains  with  the  state;  and  as  this  duty 
is  one  of  the  state,  the  manner  of  discharging  it  must  be  determined 
by  the  state,  and  no  proceeding  which  it  provides  can  be  declared 
invalid  unless  in  conflict  with  some  special  inhibitions  of  the  con- 
stitution or  against  natural  justice.  .  .  .  The  power  of  the  state 
to  regulate  the  tenure  of  real  property  within  her  limits,  and  the 
modes  of  its  acquisition  and  transfer,  and  the  rules  of  its  descent 
and  the  extent  to  which  a  testamentary  disposition  of  it  may  be 
•ised  by  its  owners,  is  undoubted.  It  is  an  established  principle 
of  law,  everywhere  recognized,  arising  from  the  necessity  of  the 
that  the  disposition  of  immovable  property,  whether  by  deed, 
descent,  or  any  other  mode,  is  exclusively  subject  to  the  govern- 
ment within  whose  jurisdiction  the  property  is  situated.1 

An  action  to  remove  clouds  and  to  quiet  title  is  not  an  action  </< 
peraonam,  but  an  action  for  land,  and  the  judgment  affects  the  title 
to  the  land.- 

?  185.  Partition;  parties  to  suits  for. 

In  suits  for  partition  all  persons  interested  should  be  made  par- 
Where  minor  children  of  a  deceased  heir  sued  the  other  heirs 
for  partition,  it  was  held  that  the  mother  of  plaintiffs  was  a  neces- 
sary party.4  In  a  suit  of  trespass  to  try  title  and  for  partition  of  a 
tract  of  land  through  which  a  railway  has  been  constructed,  the 
railway  company  is  not  a  necessary  party.*  Where  plaintiff  asks 
to  have  his  share  applied  to  a  note  secured  by  trust  deed  iriven  by 
him,  his  failure  to  make  the  assignee  a  party  is  a  vital  defect,  though 

1  Arndt  v.  Griggs,  10  Sup.  Ct.  Rep.  558,  184  U.  S.  816;  Hardy  v.  Beaty,  84  T.  569 
(19  S.  W.  Rep.  778). 

2  Sloan  v.  Thompson,  4  Civ.  App.  419  (23  a  W.  Rep.  013). 

8Portis  v.  Hill,  14  T.  69;  Oliver  v.  Robert  *<  .11.  4i  T.  I'.1.':  Ann. 1.1  v.  C.iuble,  49 
H  uiiiltnii  v.  Kin-:  8M;  Gfdlagber  V.    K. •  li non.  1.  64  T.   «••.-.':  M.- 

Kinn.'v  v.  T.  470  ill   S.  \V.  R,.p.  !'.<:;  :    I'ark.-r  v.  I'liaiu-.-l! 

Holl..\vay  v.  Mclllu-imy  «  ...  1~.  T,  -    \V.  l;-p.  -,'4<M. 

*  Kills  v 

honey  v.  Woinack.  1   Civ.  AH>.  :)51   ,l'.i  S.  V,  :   gQ  s.  \V.  R?p.  950). 


212  PARTIES   TO   ACTIONS.  [§  185. 

such  action  could  have  been  taken  by  the  assignor  of  the  note  who 
intervened  in  the  suit.1 

An  action  brought  for  partition  abates  as  such  on  the  dismissal 
of  the  suit  as  to  one  defendant  whose  tenancy  in  common  is  admit- 
ted by  the  petition.2  It  is  held  that  if  all  are  not  made  parties,  the 
decree  is  not  binding  even  on  those  before  the  court.  If,  in  the 
course  of  the  trial,  it  becomes  apparent  that  there  are  necessary  par- 
ties not  before  the  court,  the  case  should  be  stopped  and  the  parties 
brought  in  before  rendering  a  decree.  A  decree  of  partition  is  not 
binding  on  the  parties  to  it  unless  they  represent  the  whole  of  the 
estate.3  If  the  bill  shows  the  existence  of  parties  who  have  not 
been  joined,  it  will  be  dismissed  on  demurrer.4  Want  of  parties 
cannot  be  cured  by  failure  to  take  action  upon  it  in  the  trial.5  It 
is  held,  however,  that  so  long  as  the  pleadings  fail  to  show  in  a  suit 
for  partition  that  there  are  persons  interested  in  the  title  that  is 
the  subject  of  the  suit  who  are  not  parties,  the  proceedings  may  be 
prosecuted  to  a  final  decree.6 

Though  all  who  have  an  interest  should  be  made  parties,  it  is  not 
necessary  that  the  petition  should  aver  the  extent  of  each  defend- 
ant's interest ;  it  is  sufficient  to  allege  that  they  are  co-tenants  of 
the  whole  tract  of  land,  leaving  it  for  the  defendants  to  show  their 
respective  interests,  if  they  desire  partition  among  themselves.7 
But  it  is  held  that  the  bill  should  set  out  the  title  of  the  defendants 
as  well  as  of  the  plaintiffs,  and  that  it  must  appear  that  the  parties 
to  the  suit  are,  among  them,  entitled  to  the  whole  estate.8 

It  is  held  that  a  recital  in  the  proceedings  and  decree  of  the  pro- 
bate court,  that  all  the  heirs  were  present  or  represented,  and  con- 
senting thereto,  must  be  taken  as  true  until  the  contrary  is  shown ; 
and  if  one  who  was  not  a  party  accept  the  portion  allotted  to  him, 
and  afterwards  convey  it  by  deed,  referring  to  the  partition  as  his 

1  Davis  v.  Loessin,26  S.  W.  Rep.  293. 

2McKinney  v.  Moore,  73  T.  470  (11  S.  W.  Rep.  473). 

'Franks  v.  Hancock,  1  U.  C.  554;  De  La  Vega  v.  League,  64  T.  205;  Ship  Chan- 
nel Co.  v.  Bruly,  45  T.  6.  , 

«De  La  Vega  v.  League,  64  T.  205;  Buffalo  Bayou  Ship  Channel  Co.  v.  Bruly, 
45  T.  6. 

*Holloway  v.  Mcllhenny  Co.,  77  T.  657  (14  S.  W.  Rep.  240). 

6  Noble  v.  Meyers,  76  T.  2SO  (13  S.  W.  Rep.  229).  It  is  said  in  this  case  that  if 
there  be  a  superior  title  outstanding  in  persons  not  made  parties,  or  if  there  be 
persons  interested  in  the  title  adjudicated  who  have  not  been  made  parties, 
their  title  would  remain  unprejudiced,  and  the  decree  rendered  would  not  be 
binding  upon  or  of  any  effect  as  to  them.  The  effect  of  the  decree  as  to  those 
who  are  joined  in  such  case  is  not  stated.  And  see  Cryer  v.  Andrews,  11  T.  170; 
Scoby  v.  Sweatt,  28  T.  713. 

7Glasscock  v.  Hughes,  55  T.  461. 

a  Buffalo  Bayou  Ship  Channel  Co.  v.  Bruly,  45  T.  6. 


1' AIM-IKS    TO   ACTIONS.  213 

source  of  title,  he  will  be  concluded  as  respects  the  property  em- 

lu-a.-i-d  in  the  partition.1 

£  186.  Joint  trespassers. 

In  case  of  a  joint  trespass  the  party  injured  may  sue  one  or  all  of 
tin-  tiv>|>a>M'rs,  and  each  one  will  be  liable  for  the  whole  of  the 
damages;  but  a  satisfaction  made  by  one  of  them  will  discharge  all.- 
The  injured  party  may  bring  several  actions  and  obtain  several 
judgments,  but  he  can  have  but  one  satisfaction.1  "Where  the  tres- 
•rs  are  sued  jointly,  the  judgment  must  be  against  each  and  all 
for  the  full  amount  of  the  recovery;  separate  judgments  cannot  be 
filtered  against  each  for  a  part  of  the  damages.4 

While  two  wrong-doers  may  be  sued  jointly  and  a  recovery  had 
•ist  both  if  both  are  guilty,  or,  if  one  only  shall  be  found  guilty, 
against  that  one,  such  suit  may  be  brought  against  one  only  of  the 
wrong-doers,  and  upon  proof  that  the  one  sued  was  guilty  of  con- 
tributing to  the  injury,  recovery  may  be  had  against  that  one  for  the 
injury  caused  by  him  and  the  contributing  act  of  the  other  wrong- 
.  as  if  the  whole  was  caused  by  the  party  sued.  The  only  dif- 
ference in  the  result  between  suing  two  as  wrong-doers  jointly  and 
••Iccting  to  sue  one  only  will  arise  when  one  is  found  not  to  have 
contributed  at  all  to  the  injury,  in  which  case,  if  by  mistake  the  in- 
nocent party  has  been  sued,  there  can  be  no  recovery,  whereas  if 
both  had  been  joined  a  recovery  could  have  been  had  against  the 
one  proved  to  be  guilty.5  All  persons  who  contribute  to  the  corn- 
on  of  a  tort  through  which  injury  results  are  responsible  as 
principals,  and  such  persons  as  induce  a  wrongful  levy  to  be  made 
by  giving  to  the  officer  an  indemnity  bond  may  be  treated  as  tres- 
passers.6 

1  Millican  v.  Millioan,  24  T.  426.    Purchasers  under  co-tenants  must  be  join* .-•!. 

AnioM  v.  Cauble,  49  T.  527.     A  suit  by  the  widow  for  her  distributive  share  of 

MIT  deceased  husband's  estate  cannot  be  maintained  without  making  his  chil- 

;f  any,  parties.    Newland  v.  Holland,  45  T.  389.    Persons  in  possession  of 

a  portion  of  the  premises  by  purchase  from  one  of  the  co-tenants  must  be 

I'urk.-tt  v.  McDaniel,  8  Civ.  App.  630  (28  S.  W.  Rep,  360);  Curtis  v.  Cock- 

r.-ll.  ->S.  \V.  1 :.-!-.  : 

One  tenant  in  common  sold  a  part  of  the  land  by  metes  and  bounds.  Tlio 
utlu-r  tenants  in  common,  in  a  suit  for  partition  against  their  co-tenant,  ratiti-  <[ 
the  sale  made  by  him,  and  it  was  held  that  1.  s  were  not  necessary  par- 

ties.   N.  Y.  &  Tex.  L.  Co.  v.  Hyland,  8  Civ.  App.  601. 

Miiinnham  v.  Coyle,  2  App.  C.  C.,  §  424;  Markliam  v.  Navigation  Co,,  73  T. 
11  S.  \V.  K.-p.  131). 
1  McGehee  v.  Shafer,  15  T.  198. 
•Thompson  v.  Albright.  4  App.  C.  C.,  £  21. 

:  kham  v.  Navigation  Co..  7:5  T.  217  <  1 1  S.  \V.  Rep.  131). 

"Calx-ll  v.  sin* Co.,  81  T.  104(168.  W.  Rep.  sin.     Where  on.-  N  MU-.I  f,,r.laiu- 
•r  injuries  alleged  to  have   been  intlicte-l  by  his  .servant  or  employee,  the 
is  not  a  necessary  party.     Wilkins  v.  Ferrell,  30  S.  W,  Rep.  450. 


214  PARTIES   TO   ACTIONS.  [§  187. 

§  187.  Trespass  on  land;  who  may  sue. 

Possession  is  sufficient  title  to  maintain  action  against  a  tres- 
passer. This  is  still  the  rule,  although  the  plaintiff  in  setting  out 
his  title-,  alleged  one  imperfect  as  under  the  sovereignty  of  the  soil. 
There  being  no  dispute  as  to  plaintiffs  possession,  it  was  not  error 
in  the  charge  to  assume  title  to  be  in  the  plaintiff.1  Proof  of  actual, 
exclusive  possession  by  the  plaintiff  is  sufficient,  even  though  it  be 
bv  \vrong.2  One  acquiring  the  possession  subsequent  to  the  trespass 
cannot  sue.*  The  doctrine  that  possession  alone  is  sufficient  to  main- 
tain the  suit  is  founded  on  the  fact  that  possession  isprima  facie 
evidence  of  title.  If  the  title  be  in  another,  the  possessor  cannot 
recover  beyond  the  damage  to  his  possessory  Lite  rest.  He  cannot 
recover  for  damage  to  the  freehold.4 

The  right  of  action  for  a  trespass  upon  leased  premises  is  in  the 
lessee.9  Where  there  is  no  one  in  actual  possession  of  the  land,  the 
right  of  action  is  presumed  to  be  in  the  holder  of  the  legal  title  in 
preference  to  a  mere  tonant  at  sufferance.  The  latter,  in  case  of 
destruction  of  grass  by  fire,  could  only  recover  the  damage  suffered 
by  being  deprived  of  the  use  of  the  grass  for  the  time  he  expected 
to  use  it  for  pasture.  He  could  not  recover  for  injury  to  the  turf.6 

In  a  suit  brought  against  a  railway  company,  by  a  tenant,  for 
damage  to  growing  crops,  it  is  not  necessary  for  the  landlord  to  be 
joined  in  the  suit,7  especially  where  he  has  no  interest  in  the  crops 
until  his  share  is  set  apart  to  him  under  the  rental  contract,8  or 
where  there  is  no  injury  to  the  freehold.9  A  'tenant  may  maintain 
an  action  for  injuries  resulting  from  a  nuisance,  which  caused  sick- 
ness in  his  family.10  Joint  owners  of  a  damaged  crop  should  join  in 
a  suit.11  For  an  injury  to  land  which  is  the  separate  property  of  the 
wife,  she  may  join  in  a  suit  by  the  husband;  but  where  the  action 

1  G.,  C.  &  S.  F.  Ry.  Co.  v.  Cusenberry,  5  Civ.  App.  114  (23  S.  W.  Rep.  851). 

2  Linard  v.  Crossland,  10  T.  4"/>. 
'Cent  R.  Co.  v.  Merkel.  32  T.  7J]. 

« I.  &  G.  N.  Ry.  Co.  v.  Ragsdale.  67  T.  24  (2  S.  W.  Rep.  515).  Action  for  unlaw- 
fully tearing  down  and  removing  a  house.  Plaintiffs  claimed  under  a  deed, 
but  proof  of  its  contents  was  excluded  because  its  loss  was  not  sufficiently 
proved.  They  proved  exclusive  and  peaceable  possession  for  some  time  prior  to 
the  trespass,  and  at  the  time  of  the  trespass  the  house  was  not  occupied,  but 
was  in  the  hands  of  an  agent  to  be  rented.  This  was  held  a  sufficient  proof  of 
title  or  ownership  to  maintain  the  action.  Holman  v.  Herscher,  16  S.  W.  Rep. 
984. 

6  Reynolds  v.  Williams,  1  T.  311. 

'Tex.  &  Pac.  Ry.  Co.  v.  Torrey,  4  App.  C.  C.,  §  256. 
x.  &  Pac.  Ry.  Co.  v.  Bayliss,  62  T.  570. 

» St.  L.,  A.  &  T.  Ry.  Co.  v.  Heard,  3  App.  C.  C.,  §  397. 

9G.,  C.  &  S.  F.  Ry.  Co.  v.  Smith,  3  Civ.  App.  483  (23  S.  W.  Rep.  89). 

»Lockett  v.  Ft.  W.  &  R.  G.  Ry.  Co.,  78  T.  211  (14  S.  W.  Rep.  564). 

11  H.  &  T.  C.  Ry.  Co.  v.  Hollingsworth,  2  App.  C.  C.,  §  173;  Tex.  &  Pac.  Ry.  Co. 
v.  Gill,  id.,  §  176. 


PARTIES   TO   ACTIONS. 

is  to  recover  damages  for  injuries  to  the  crops  and  to  the  feelings 
of  the  husband,  >he  should  not  be  joined.  The  right  of  action  is  in 
the  husband  alone.1 

A  mere  license  to  graze  one's  cattle  upon  the  lands  of  another 
confers  no  such  right  in  the  lands  as  to  entitle  the  owner  of  the 
cattle  to  recover  damages  for  an  injury  done  to  the  lands.2 

?•  188.  Wrongful  attachment.' 

In  a  suit  for  wrongful  attachment  the  plaintiff  in  the  attachment, 
the  sheriff  and  his  sureties  may  be  joined  as  defendants.3  The  rule 
is  that  in  suits  for  property  converted  and  for  damages  proximately 
resulting  from  a  breach  of  contract,  it  is  proper  to  join  all  the  par- 
is  plaintiffs  or  defendants,  who  have  so  participated  in  the 
transaction  as  to  render  them  interested  in  the  determination  of 
the  suit.4 

In  a  proceeding  against  a  sheriff  and  his  sureties  to  recover  money 
in  his  hands,  the  proceeds  of  property  sold  under  attachment,  in  a 
proceeding  to  which  the  plaintiff  was  not  a  party,  prosecuted  on 
the  ground  that  the  plaintiff  was  a  joint  owner  of  the  property 
sold,  the  defendant  in  attachment  is  a  necessary  party.*  Where 
one  party  enters  into  an  agreement  with  another,  the  performance 
of  which  entitles  him  to  an  interest  in  certain  property,  and  is  pro- 
ceeding to  carry  out  the  agreement,  and  the  property  is  seized  under 
writ  of  attachment,  in  a  suit  for  wrongful  seizure  he  is  not  only  a 
proper  but  a  necessary  party  to  the  suit,  having  secured  a  substan- 
tial and  material  interest  in  the  subject-matter  thereof.6 

One  action  may  be  brought  by  an  assignee  of  a  failing  debtor 
against  the  sheriff  for  wrongfully  levying  three  writs  of  attachment 
f<»r  different  parties  claiming  in  distinct  rights,  which  were  levied 
on  different  portions  of  the  assigned  property.  The  right  of  action 
accruing  for  the  three  seizures  under  attachment  to  the  same  per- 
son and  a«rainst  the  same  individual,  the  right  may  be  ascertained 
and  determined  in  one  action.7 

'  T.  &  S.  L.  R  Co.  v.  Reid,  1  App.  C.  C.,  §  296. 
*8abine  &  E.  T.  Ry.  Co.  v.  Johnson,  65  T.  389. 
»  B.  C.  E^  .  Reeves,  6  Civ.  App.  254  (26  S.  W.  Rep.  219);  Willis  v.  Whit 

W.  Kep.  M 
«  Millik.-n  v.  (  allahan  Co.,  69  T.  205  (6  a  W.  Rep.  681). 

in...  ~>\  T.  i9a 

kett  v.  llinsdale.  2  U.  C.  468. 

'  Thomas  v.  ( 'liapman.  62  T.  193.     An  attachment  at  suit  of  W.  &  Son  was 
up :ni  i>r«>|>.Tty  of  the  East  and  West  Texas  Lumber  Company.     Pending 
the  proceeding  II.  was  appointed  receiver  of  the  luinU-r  company.     The  prop- 
erty was  sold  by  tin-  n  -c.'ivcr  under  order  of  the  court,  and  the  net  proceeds  were 
iur  of  the  court  turned  over  to  Williams  and  Minys.  creditors  of  the  com- 
pany, they  first  executing  a  bond  to  the  receiver, obligating  themselves  "to  pay 
such  judgment  as  W.&  Son  mi^ht  recover."  with  Rand  M.  sureties.     This  bond 


216  PARTIES   TO  ACTIONS.  [§§  189,  190. 

g  189.  Nuisance;  injuries  to  land. 

All  persons  who  co-operate  to  create  and  maintain  a  nuisance  are 
jointly  liable  in  damages.1  It  is  a  misjoincler  for  a  father  to  join 
with  himself  his  minor  children  in  a  suit  for  damages  for  injury  to 
the  health  of  his  family,  alleged  to  result  from  stagnant  water  near 
his  dwelling  caused  by  an  embankment.  The  fact  that  the  plaint- 
iff is  a  tenant  is  not  an  objection  to  his  maintaining  the  action.2 

£  1GO.  Injuries  resulting  in  death. 

In  cases  arising  under  the  provisions  of  the  statute  relating  to  in- 
juries resulting  in  death,  the  parties  entitled  to  sue  may  bring 
their  suit  for  damages  as  provided  in  said  statute.3  The  action  is 
for  the  sole  and  exclusive  benefit  of  the  surviving  hiuband,  wife, 
children  and  parents  of  the  person  whose  death  shall  have  been 
caused,  and  the  amount  recovered  fs  not  liable  for  the  debts  of  the 

was  approved  by  the  judge.  Neither  Williams  and  Mings  nor  their  sureties 
were  made  parties,  nor  did  they  appear.  It  was  held  that  a  judgment  rendered 
upon  a  trial  of  the  attachment  suit  against  the  lumber  company  and  H.,  the  re- 
ceiver, against  the  obligors  on  the  bond  was  without  jurisdiction,  and  as  to  them 
the  case  was  reversed.  Williams  v.  Warren,  82  T.  319  (18  S.  W.  Rep.  560).  Suit 
on  a  note  and  attachment  of  goods.  Judgment  for  interveners,  and  plaintiff 
appeals  without  giving  a  supersedeas  bond,  and  pending  the  appeal  the  amount 
in  controversy  is  paid  over  to  the  interveners.  Judgment  reversed,  and  plaint- 
iff amended,  alleging  that  interveners  had  received  the  fund  by  virtue  of  the 
judgment  which  had  been  reversed,  and  prayed  a  judgment  against  them  for 
its  recovery.  Interveners  also  amended.  Plaintiff  moved  to  strike  out  the 
amended  pleas  upon  the  ground  that  it  appeared  therefrom  that  one  G.  had  also 
sued  out  an  attachment  on  the  same  goods,  and  that,  therefore,  he  was  a  neces- 
sary party.  It  not  appearing  from  the  pleadings  excepted  to  that  G.  had  ob- 
tained a  lien  upon  the  fund,  the  exception  was  properly  overruled.  Freiberg  v. 
Freiberg.  19  S.  W.  Rep.  791. 

i  Comminge  v.  Stevenson,  76  T.  642  (13  S.  W.  Rep.  556). 

'Lockett  v.  Ft.  W.  &  Rio  G.  Ry.  Co.,  78  T.  211  (14  S.  W.  Rep.  564).  Suit  was 
brought  by  Meddlegge  against  the  Mexican  National  Construction  Company 
for  damages  caused  by  defendant  making  excavations  which  became  a  nuisance 
upon  its  lands  lying  between  the  land  of  plaintiff  and  the  gulf.  The  removal 
of  the  sand  also  exposed  the  premises  to  floods  from  the  gulf  when  tides  were 
high.  Suit  was  filed  May  17,  1886.  September  12.  1888,  plaintiff  by  supple- 
mental petition  alleged  that  on  February  29,  1888,  defendant  sold  the  railway 
of  the  defendant  to  the  Galveston  &  Western  Railway  Company,  and  that  the 
two  made  some  kind  of  arrangement  together  for  the  use  of  the  land  upon 
which  the  alleged  nuisance  was  made,  and  that  subsequent  to  the  purchase  the 
two  companies  had  continued  the  nuisance;  making  the  Galveston  &  Western 
Railway  Company  a  party  defendant.  Exceptions  were  urged  to  the  supple- 
mental petition  on  the  ground  of  misjoinder.  On  final  trial  plaintiff  recovered 
$1,000  damages  against  the  original  defendant,  and  $500  damages  against  the 
Galveston  &  Western  Railway  Company.  It  was  held  that  the  exceptions  were 
well  taken  for  misjoinder  of  parties  and  of  causes  of  action.  The  allegation 
that  the  (ialveston  &  Western  Railway  Company  had  ratified  the  acts  of  its 
vendor  did  not  make  it  liable  upon  the  original  suit.  Mex.  Nat.  Construction 
Co.  v.  Meddlegge,  75  T,  634  (13  a  W.  Rep.  357). 

3R.8.1199. 


§  190.]  PARTIES   TO    ACTIONS.  1'  1  7 

led.  The  action  may  be  brought  by  all  the  parties  entitled, 
or  by  any  one  or  more  of  them  for  the  benefit  of  all.  If  the  parties 
entitled  fail  to  sue  within  three  calendar  months  after  the  death 
occurs,  it  is  made  the  duty  of  the  executor  or  administrator  of  the 
ised  to  commence  and  prosecute  the  action,  unless  requested 
by  all  of  the  parties  entitled  not  to  prosecute  the  same.  If  the 
plaintilF  to  the  suit  die  pending  the  suit,  other  parties,  if  any,  may 
come  in  and  prosecute,  and  if  the  defendant  die,  his  executor  or  ad- 
min istra  tor  may  be  made  a  party.1 

When  the  evidence  develops  the  fact  that  the  deceased  had  other 
relatives  who  under  the  statute  can  share  in  the  damages  recovered 
for  his  death,  the  proceedings  must  be  arrested  until  the  pleading* 
are  so  amended  that  the  suit  can  be  conducted  for  the  use  of  all  of 
the  beneficiaries.  It  is  no  answer  to  an  objection  made  for  want 
of  proper  parties  plaintiff,  to  reply  that  the  claim  of  the  unjoined 
beneficiaries  is  barred  by  the  statute  of  limitations.  A  release  by  a 
necessary  party  plaintiff  who  is  not  joined  cannot  be  established  !»y 
ex  parte  affidavits  produced  in  answer  to  a  motion  for  new  trial. 
Such  proof  should  be  made  during  the  progress  of  the  trial,  under 
the  rules  governing  the  introduction  of  other  evidence,  and  subject 
to  cross-examination.3  The  statute  intends  that  but  one  suit  be 
brought  for  a  malicious  killing.  But  it  is  held  that  want  of  proper 
parties  plaintiff  must  be  met  by  objection  for  such  non-joinder.  A 
mother  has  been  permitted  to  sue  for  herself  and  for  the  benefit  of 
her  husband,  in  a  case  of  the  killing  of  a  minor  son.4  Where  minor 
children  sued,  it  was  held  that  the  objection  that  the  petition  did 
not  allege  that  there  were  no  surviving  parents  or  widow  could  not 
be  made  available  under  a  general  exception,5  Where  the  father 
of  deceased  lived  in  another  state,  and  it  did  not  appear  that  he 
suffered  any  actual  damage,  it  was  held  that  the  widow  and  chil- 
dren could  maintain  the  action  without  him.8  In  an  action  for  tho 
killing  of  the  husband  and  father,  the  widow  may  sue  for  herself 
and  as  next  friend  of  the  minor  children.7 

The  action  will  not  lie  for  the  benefit  of  the  wife  alone,  where 
the  petition  shows  that  the  mother  survives,  if  the  exception  be 
made  in  time,  if  the  mother's  interests  have  not  been  adju- 
That  the  mother's  claim  is  barred  by  limitation  is  no  answer  to  the 

1  R,  S.  3021-3026.    See  g  324.  post, 

•  Ft.  W.  &  D.  C.  By.  Co.  v.  Wilson,  83  T.  516  (23  S.  W.  Rep.  578);  H.  &  T.  C.  lly. 

Mi>urv.  4'J  T.  :',!. 

'Paschal  v.  Own,  77  T.  -VIS  (14  S.  W.  Rep.  •,' 
4  Mo.  Pao.  Ry.  Co.  v.  Henry.  75  T.  220  (12  S.  W.  R-p.  - 
••Man-h  v.  Walker,  i-  T 

«St.  I*,  A.  &  T.  Ry.  Co.  v.  Taylor,  5  Civ.  App.  00$  <24  S.  W.  Rep.  973);  Mo.  Tac. 
Ry.  Co.  v.  U.-nry.  T:,  T,  220  (12  S.  W,  Rep,  82S), 
7  a  &  T,  C,  Ry,  Co.  v.  Shaw,  3  U,  C,  553. 


21S  PARTIES   TO   ACTIONS.  [§§  101,  192. 

exception.  If  she  has  settled  her  claim,  that  fact  may  be  shown, 
and  the  judgment  will  stand.1 

The  father  and  mother  may  join  in  a  suit  for  the  killing  of  a 
child.2  Grandchildren  are  not  included  in  the  word  "  children." 2 

Suit  may  be  brought  by  the  guardian  of  the  estate  of  minor  children, 
either  in  his  name  for  his  wards,  or  in  the  name  of  the  wards  by  the 
guardian.  He  cannot  compromise  the  rights  of  his  wards.  The  fact 
that  tlu>  parties  entitled  do  not  sue  within  three  months  does  not  vest 
the  rifht  of  action  exclusively  in  the  executor  or  administrator.4 

§  191.  May  appear  in  person  or  by  attorney. 

Any  ] >arty  to  a  suit  may  appear  and  prosecute  or  defend  his  rights 
therein,  either  in  person  or  by  an  attorney  of  the  court.5 

g  192.  Attorney  for  absent  defendants. 

Where  service  of  process  has  been  made  by  publication,  and  no 
answer  has  been  filed  within  the  time  prescribed  by  law,  the  court 
is  directed  to  appoint  an  attorney  to  defend  the  suit,  and  judgment 
will  be  rendered  as  in  other  cases.  In  every  such  case  a  statement 
of  the  evidence,  approved  and  signed  by  the  judge,  must  be  filed  with 
the  papers  of  the  cause  as  part  of  the  record  thereof.6  Unless  these 
requirements  are  complied  with  the  judgment  will  be  reversed.7 

1 D.  &  W.  Ry.  Co.  v.  Spiker,  59  T.  435.  The  defendant  cannot  complain  that 
an  adult  party  waives  his  claim  in  favor  of  another  party  entitled  to  sue. 
Dallas  R.  T.  Ry.  Co.  v.  Elliott,  26  S.  W.  Rep.  455.  The  widow  may  compromise 
her  right,  but  not  that  of  her  children.  H.  &  T.  C.  Ry.  Co.  v.  Bradley,  45  T.  171. 
It  is  held  that  if  all  the  parties  in  interest  are  not  before  the  court  as  actual 
plaintiffs,  the  suit  should  proceed  in  the  name  of  one  or  more  for  the  use  of  the 
others.  G.,  H.  &  S.  A.  Ry.  Co.  v.  Le  Gierse,  51  T.  189;  H.  &  T.  C.  Ry.  Co.  v. 
Moore,  49  T.  31. 

••*Tex.  &  Pac.  Ry.  Co.  v.  Hall,  83  T.  675  (19  S.  W.  Rep.  121).  Where  an  adult 
freedman  was  killed  in  Texas,  his  father,  resident  in  Georgia,  was  permitted  to 
sue.  H.  &  T.  C.  Ry.  Co.  v.  Baker,  57  T.  419. 

'Dallas  R.  T.  Ry.  Co.  v.  Elliott,  7  Civ.  App.  216  (26  S.  W.  Rep.  455). 

*H.  &  T.  C.  Ry.  Co.  v.  Bradley,  45  T.  171;  March  v.  Walker,  48  T.  372. 

s  R.  S.  1209. 

6R.  S.  1346.  Article  1212  of  the  Revised  Statutes  of  1879  read  as  follows:  "In 
all  suits  where  the  defendant  is  cited  by  publication,  and  no  appearance  is 
entered  within  the  term  allowed  for  pleading,  the  court  shall  appoint  an  at- 
torney to  defend  in  behalf  of  such  defendant,  and  shall  allow  such  attorney  a 
reasonable  compensation  for  his  services,  to  be  taxed  as  part  of  the  costs  of  the 
suit."  This  is  omitted  from  the  revision  of  1895,  evidently  by  mistake.  The 
legislature  in  1895  (Acts  1895,  p.  80)  amended  article  1211  of  the  Revised  Statutes 
of  1879,  which  provided  for  the  appointment  of  a  guardian  ad  litem  for  a  minor 
defendant.  In  compiling  the  revision  of  1895  the  amended  article  1211  is  re- 
tained as  article  1210,  and  is  immediately  followed  by  the  amendment,  which 
replaces  the  old  article  1212,  for  the  appointment  of  an  attorney  for  an  absent 
defendant,  though  the  marginal  note,  "Attorney  for  absent  defendants,"  is  re- 
tained. See  R.  S.  of  1895,  arts.  1210,  1211. 

7  Burns  v.  Batey,  1  App.  C.  C.,  §  420;  Hewitt  v.  Thomas,  46  T.  232.  See  Byrnes 
v.  Sampson,  74  T.  79  (11  S.  W.  Rep.  1073),  where  the  act  of  1866  (P.  D.,  25,  54CO) 
is  construed. 


'3,  194.]  PARTIES   TO   ACTI  I'll' 

X  193.  Guardians  ad  litem. 

In  all  cases  when  a  minor,  lunatic,  idiot  or  a  non  compos  mentis 
may  In-  a  defendant  to  a  suit,  and  it  shall  be  shown  to  the  court 
that  such  minor,  lunatic,  idi  >t  or  non  compo*  ///<//  f<*  has  no  guardian 
within  the  state,  it  is  tl  e  duty  of  the  court  to  appoint  a  guardian 
for  such  minor,  lunatic,  idiot  or  non  compos  mentis  for  the 
purpose  of  defending  such  suit,  and  to  allow  him  a  reasonable  com- 
stion  for  his  services,  to  be  taxed  as  a  part  of  the  costs  of  suit.1 
This  article  amends  the  act  of  1846,  by  adding  the  words  "  lunatic, 
idiot  or  non  compos  mentis"*  The  guardian  of  the  estate  of  a 
minor  is  authorized  to  bring  and  defend  suits  by  and  against  his 
uard.8 

Male  persons  under  twenty-one  years  of  age,  and  females  under 
twenty-one  years  of  age,  who  have  never  been  married,  are  minors.* 

A  guardian  ad  lit>'in  may  be  appointed  for  minors  who  are  brought 
in  as  interveners.*  Though  a  judgment  against  minor  defendants 
without,  the  appointment  of  a  guardian  «<l  I'/t^m  would  not  be  v«>id. 
it  is  held  that  a  due  administration  of  justice  would  require  its  re- 
l  on  appeal.6  And  where  a  guardian  ad  lit-  m.  neglects  to  prose- 
cute an  appeal  from  a  judgment  against  minor  defendants,  they 
may  prosecute  a  writ  of  error  by  next  friend,  if  it  does  not  appear 
from  the  record  that  the  guardian  objects  to  the  writ  being  so  prose- 
cuted.7 

£  194.  Minor  may  sue  by  next  friend. 

Any  minor  having  a  sufficient  cause  of  action,  and  who  has  no 
legal  guardian,  can  bring  suit  in  any  of  the  courts  of  this  state  by 
next  friend,  and  such  next  friend  shall  have  the  same  rights  con- 
cerning such  suit  and  the  matter  therein  involved  as  if  he  were 
guardian  of  such  minor.  lie  shall  not  be  relieved  from  giving  se- 
curity for  cost,  or  affidavit  in  lieu  thereof,  and  cannot  collect  the 
'•eds  of  any  moneyed  judgment  he  may  recover,  except  as 
herein  specified. 

Such  in  xt  friend,  or  the  attorney  of  record,  of  such  minor  may 
enter  into  such  agreed  judgment  or  compromise  in  such  suit  as  the 
court  may  approve,  and  the  decree  entered  upon  such  agreement  or 
-,  when  approved  by  the  court,  will  be  forever  binding 


to  is'.ir,.  p.  80;  R  &  1211.  Amends  article  1210,  which  should  be  omitt-  •,]. 
See  note  to  section  192,  supra. 

2  P.  D.  1446;  RS.  12in. 

*  R  S.  2623.  And  see,  also,  the  provision  as  to  puardians  of  the  estates  of  per- 
sons of  unsound  mind  and  hnliitual  drunkards.  R  S.  I 

«R. 

•••  Sdn.nli.-ld  v.  Turner.  6  S.  W.  Rej. 

•Ashe  v.  YOUHK.  «  T.  W.  K.-|..  I 

"  Carlton  v.  Miller.  ->  Civ.  App.  619  (21  S.  W.  Rtp.  697). 


P.AKTIES   TO   ACTIONS.  [§  195. 

on  the  minor.  The  decree  may  divest  title  out  of  the  minor  or  vest 
it  in  him,  when  the  court  is  satisfied  such  decree  is  for  the  best  in- 
terest of  the  minor,  under  all  the  circumstances ;  and  the  court  may 
hear  evidence  touching  upon  such  agreement  or  compromise  before 
approving  the  same. 

Whenever  in  any  suit  pending  in  this  state  any  minor  recovers  a 
personal  judgment  for  money  or  other  personal  property  in  which 
the  interest  of  the  minor  does  not  exceed  the  value  of  $500,  and  the 
minor  has  no  guardian,  such  next  friend  or  any  person  authorized 
by  the  court  to  do  so,  by  an  order  entered  of  record,  may  take 
charge  of  said  money  or  property  for  the  benefit  of  the  minor  upon 
giving  bond  in  such  sum  as  shall  be  ordered  by  the  court,  which 
shall  not  be  less  than  double  the  value  of  the  property,  conditioned 
that  he  will  pay  over  said  money  and  interest  thereon  and  deliver 
said  property  and  its  increase  to  the  minor  when  he  becomes  of  age, 
or  to  his  legally  qualified  guardian  when  demanded,  and  that  he 
will  pay  or  deliver  the  same  to  such  person  appointed  by  the  court, 
when  ordered  by  the  court  to  do  so,  and  that  he  will  use  such  money 
or  property  for  the  benefit  of  the  minor  as  ordered  by  the  court.  Such 
person  who  takes  such  money  or  property  shall  receive  no  fees  or 
commissions  for  caring  for  or  handling  the  same,  but  shall  receive 
such  compensation  for  caring  for  or  handling  the  same  as  may  be 
allowed  by  the  court,  and  shall  make  such  disposition  thereof  and 
at  all  times  as  the  court  may  order;  he  may  be  required  to  return 
such  money  or  property  into  court  upon  the  order  of  the  court, 
when  the  court  may  make  such  further  disposition  of  the  money  or 
property  as  is  deemed  best  for  the  minor. 

Whenever  any  attorney  or  other  person  has  any  interest  in  such 
recovery  or  judment  the  court  may  hear  evidence  as  to  such  inter- 
est, and  if  deemed  just  shall  order  such  claim,  or  such  part  as  is 
deemed  just,  to  be  paid  to  such  person  who  is  entitled  to  receive 
the  same.1 

Minors  sued  by  next  friend  before  the  adoption  of  the  above 
statute.' 

g  195.  Additional  parties. 

Before  a  case  is  called  for  trial  additional  parties  may,  when  they 
are  necessary  or  proper  parties  to  the  suit,  be  brought  in  by.  proper 
process,  either  by  the  plaintiff  or  the  defendant,  upon  such  terms 

» Acts  1893,  p.  3;  R.  8.  3498?t-3498#. 

ZJvey  v.  Harrell,  1  Civ.  App,  226  (20  8.  W.  Rep.  775);  Hays  v.  Hays,  66  T.  606 
(1  S.  W.  Rep.  895);  Chambers  v.  Ker,  6  Civ.  App.  373  (24  S.  W.  Rep.  1118);  G ,  C. 
&  S.  F.  Ry.  Co.  v.  Styron,  66  T.  421  (11  S,  W,  Rep.  661);  Island  City  Savings  Bank 
v.  Wale*,  3  App.  C.  C.,  §  244;  St  L,  L  M,  «  S.  Ry.  Co.  v.  Jackson,  3  App.  C.  C., 
\Vygal  v.  Myers,  76  T.  598  (13  S,  W,  Rep.  567);  Carlton  v,  Miller,  3  Civ. 
App.  619  (21  a  W.  Rep.  697), 


§  195.]  I>AI:TIK>  TO  ACTI.  221 

as  the  court  may  prescribe;  but  such  parties  shall  not  be  brought 
in  at  such  a  time  or  in  such  a  manner  as  unreasonably  to  delay  the 
trial  of  the  case.1 

In  quo  u'nrranto  proceedings,  when  it  appears  to  the  court  or 
judge  that  the  several  rights  of  divers  parties  to  the  same  office  or 
franchise  may  properly  be  determined  on  one  information,  leave 
may  be  granted  to  join  all  such  persons.3  Application  to  make  par- 
iidor  the  statute  must  be  made  before  the  case  is  called  for 
trial.  It  is  proper  to  refuse  to  allow  parties  to  be  made  when  the 
application  is  made  by  them  after  an  application  for  continuance 
has  been  overruled.8  If  a  demurrer  is  sustained  for  want  of  proper 
parties,  the  suit  will  not  necessarily  be  dismissed ;  the  plaintiff  may 
have  leave  to  amend  by  bringing  in  the  proper  parties.4  Where 
one  is  brought  in  against  whom  the  defendant  claims  the  right  to 
a  judgment  in  case  judgment  goes  against  him,  the  person  so  sought 
to  be  brought  in  may  plead  his  privilege  of  being  sued  in  the  county 
of  his  domicile;5  subject  to  such  right,  a  person  so  liable  may  be 
brought  in.9  Bailee,  agent,  or  tenant  cannot  interplead  bailor,  prin- 
cipal, or  landlord.7 

In  a  suit  by  heirs  to  recover  damages  for  injury  to  land  the  de- 
fendant may,  by  proper  plea,  have  the  father,  in  whom  is  vested 
a  life  estate  to  one-third  of  the  property,  made  a  party.  Failing  in 
this,  he  may  by  instruction  limit  the  recovery  to  the  interest  of  the 
minors.  If  the  plaintiff  be  the  father  of  the  minors,  and  he  alleges 
ownership  in  them,  he  is  estopped  from  afterwards  recovering  dam- 
ages to  his  life  estate,  and  a  judgment  for  damages  to  the  entire 
estate  will  not  be  disturbed.8 

One  interested  in  the  subject-matter  of  litigation  may  make 
himself  a  party,  and  assert  his  rights  even  after  judgment,  and 
move  for  a  new  trial.  One  thus  interested,  against  whom  no  judg- 
ment is  rendered,  who  after  judgment  appears  and  appeals  in  his 
own  right  from  a  judgment  refusing  his  motion  for  a  new  trial, 
does  not  by  such  appeal  affect  the  right  of  the  successful  party  to 
enforce  the  collection  of  his  judgment  against  property  ordered  to 

iR.  3.1208, 
JR.S.4344, 

« Reagan  v.  Copeland,  78  T.  551  (14  a  W.  Rep.  1031);  Pac.  Express  Co.  v.  Will- 
lams,  2  App.  C.  C.,  8  810. 

*  Mott  v.  Ruenbuhl,  1  App.  C.  G,  §  599. 

•Holloway  v.  Blum,  60  T.  625;  Blum  v.  P.oot,  2  App.  C.  C.,  g  98. 

V.  Life  Ins.  Co,  v.  Rohrbough,  2  App.  G  C,  §  216;  Kempner  v.  Wallis,  3 
A  pp.  C.  C.,  §584 

•  Pac.  Express  Co.  v.  Williams,  2  App.  C.  C.,  §811;  2  Pom.  Eq.,  g  1320  and 
note  2. 

» Ft  W.  &  N,  a  Ry,  Co.  v.lPearce,  75  T.  281  (12  a  W.  Rep.  8C4). 


00-2  PARTIES   TO   ACTIONS.  [§  196. 

be  sold  to  satisfy  the  judgment  rendered  against  a  third  party  in 
the  cause  who  did  not  appeal.1 

In  a  suit  by  an  insolvent  vendor  against  the  vendee  to  enforce 
pavment  of  purchase-money  for  land,  the  vendee  has,  as  against  his 
vendor,  the  right  in  equity  to  have  the  claimants  of  an  outstanding 
irrant,  who  assert  title,  called  in,  and  have  the  question  settled,  be- 
fore he  can  be  evicted  or  required  to  pay  the  balance  of  the  pur- 
chase-money.2 While  a  defendant  who  is  sued  upon  a  note  given 
for  unpaid  purchase-money  for  land  may  successfully  defend  by 
showing  an  outstanding  title  superior  to  that  of  his  vendor,  the 
owner  of  the  outstanding  title  is  not  a  necessary  party,  and  should 
not  be  compelled  to  litigate  his  title  in  a  suit  involving  issues  which 
cannot  affect  him.1 

A  sheriff,  constable,  or  deputy  of  either,  when  sued  for  damages, 
may  make  the  obligors  in  indemnifying  bonds  taken  by  him  par- 
ties defendant,  and  the  cause  may  be  continued  for  the  purpose  of 
obtaining  service  on  such  parties.4 

8  196.  Parties  to  condemnation  proceedings. 

A  mortgagee  or  beneficiary  in  a  trust  deed  is  a  necessary  party 
to  a  proceeding  to  condemn  land  for  a  public  road;  if  he  is  not 
joined  he  may,  when  the  debt  matures,  foreclose  against  the  mort- 
gagor and  the  county.  It  seems  that  he  may  not,  before  the  ma- 
turity of  his  claim,  sue  the  county  for  impairment  of  the  security.5 
The  vendee  in  an  executory  contract  for  the  sale  of  land,  if  not  made 
a  party  to  proceedings  by  a  railway  company,  may  sue  the  company 
for  damages,  notwithstanding  he  has  made  default  in  his  payments.6 

1  Ferris  v.  Streeper,  59  T.  812;  Streeper  v.  Ferris,  64  T.  12. 

ZEstell  v.  Cole,  52  T.  175. 

»  Fisher  v.  Abney,  69  T.  416  (9  S.  W.  Rep.  321).  The  filing  of  a  paper  in  a  cause, 
designated  therein  as  an  "  amended  petition,"  wherein  one  not  before  a  party  to 
the  cause  seeks  to  make  himself  a  plaintiff  in  lieu  of  the  original  plaintiff,  is  an 
irregularity,  though  filed  with  leave  of  the  court,  and  no  judgment  can  be  ren- 
dered thereon  until  after  service  thereof  upon  the  defendant  as  in  an  original 
suit  The  fact  that  defendant  has  not  been  cited  to  appear  and  answer  the  peti- 
tion of  such  a  party  affords  no  ground  for  exception  to  the  petition,  though  a 
plea  to  the  jurisdiction  of  the  person  for  want  of  service  should  be  sustained. 
If,  however,  after  attempting  to  except  to  such  petition  because  there  was  no 
service  thereof,  the  defendant  answers  in  full  to  the  merits,  he  will  be  regarded 
as  having  waived  the  irregularity  of  the  proceeding.  The  rights  of  a  party  thus 
permitted  to  be  made  a  party  plaintiff  are  neither  enlarged  nor  restricted  by 
any  proceedings  had  formerly  between  the  original  parties  to  the  cause.  Arm- 
strong v.  Bean,  59  T.  492.  In  a  suit  for  the  recovery  of  money  for  work  done  on 
a  contract  between  defendant  and  plaintiff,  a  defense  setting  up  that  the  defend- 
ant had  paid  for  the  work  to  other  parties,  between  whom  and  plaintiff  no  priv- 
ity of  contract  is  alleged,  does  not  entitle  the  defendant  to  have  such  other 
parties  brought  in  as  parties  to  the  suit  G.,  H.  &  S.  A.  Ry.  Co.  v.  Gage,  63  T.  568. 

*Acts  1885,  p.  90;  R  S.  1201. 

»  Aggs  v.  Shackelford  Co.,  85  T.  145  (19  S.  W.  Rep.  1085). 

•Odell  v.  Railway  Co.,  4  Civ.  App.,  C07  (22  S.  W.  Rep.  821). 


CHAPTER  VIII. 


OBJECTIONS  FOR  DEFECT  OF  PARTIES. 


May  be  made  by  demurrer  or 
plea. 

198.  Objections  for  want  of  parties 

plaintiff,  how  taken. 

199.  Objections  for  want  of  proper 

defendants,  how  taken. 


§  200.  Objections   for  want  of  proper 

parties,  when  made. 
201.  Objection   for  want  of  parties. 
how  obviated. 


?'  197.  May  be  made  by  demurrer  or  plea. 

A  defect  of  parties  in  a  suit  may  be  taken  advantage  of  by  the 
answer.  Wherever  the  deficiency  of  parties  appears  on  the  face  of 
the  petition,  the  defect  is  a  cause  of  special  demurrer.1  If  the  de- 
murrer for  want  of  parties  is  allowed,  the  suit  will  not  necessarily 
be  dismissed,  but  the  plaintiff  may  have  leave  to  amend,  by  bring- 
ing in  the  proper  parties,  or  dismissing  as  to  those  improperly 
joined.2  If  the  defect  of  parties  is  not  apparent  upon  the  face  of 
the  petition,  it  may  be  brought  before  the  court  by  plea,1  which 
must  aver  the  matter  necessary  to  show  it,  and  must  be  sworn  to, 
unless  the  truth  of  the  plea  appears  of  record.4 

It  is  held  that  objections  for  misjoinder  or  non-joinder  cannot  be 
raised  on  general  demurrer.*  If  the  defect  is  not  apparent  from 
the  pleadings  of  plaintiff,  it  can  only  be  reached  by  plea  in  abate- 
ment; if  it  is  apparent,  it  may  be  reached  by  exception.8  It  cannot 
be  reached  by  a  motion  to  dismiss  after  the  evidence  is  introduced.7 

When  the  non-joinder  of  a  joint  obligor  as  defendant  is,  by  the 
petition,  alleged  to  be  on  account  of  the  death  of  such  obligor,  and 

» 1  Danl  Ch.  Pr.  312;  Williams  v.  Bradbury,  9  T.  487;  Shelby  v.  Burtis,  18  T. 
644. 

'Austin  v.  Jordan,  5  T.  136;  Dean  v.  Duffield,  8  T.  235;  Horton  v.  Wheeler,  IT 
Cook  v.  Phillips,  18  T.  81;  White  v.  Leavitt,  20  T.  703;  Payne  v.  BentK-y. 
21  T.  452;  Shipman  v.  Allen,  29  T.  17;  Bailey  v.  Trammell,  27  T.  317. 
»  Story's  Eq.  PL  286. 

« R.  a  1265;  Keabadour  v.  Weir,  20  T.  254 

">  McFadden  v.  Schill,  84  T.  77  (19  S.  W.  Rep.  868);  Williams  v.  Bradbury.  9  T. 
>helby  v.  Burtis,  18  T.  644;  Tex.  &  Pac,  Ry.  Co.  v.  Pollard.  2  App.  C.  C., 
:  Detroit  Electrical  Works  v.  Riverside  Ry.  Co.,  29  S.  W.  Rep.  412. 
« O'Neal  v.  Lockhart,  2  U.  C.  597;  Parks  v.  Dial,  56  T.  261:  Tex.  &  Pac.  Ry.  Co. 
v.  Pollard.  2  App.  C.  C..  §  481;  Ezell  v.  Dodson,  60  T.  831;  Hill  v.  Newman,  67  T. 
265  (3  S   \V.  i:  ]..  -J71);  Davis  v.  Willis,  1  App.  C.  C..  S  291:  Hinchman  v.  Ri. 
1  Aj.p.  r.  <'..  ;  -JIM:  Mott  v.  Ruenbuhl,  1  App.  C.  C.,  §  599;  Stresan  v.  FiJeli,  1 

•  McGuire  v.  Glass,  4  App.  C,  C.,  §  54. 


i>-24:  OBJECTIONS  FOR  DEFECT  OF  PARTIES.  [§  198. 

he  is  in  fact  living,  the  non-joinder  cannot  be  taken  advantage  of 
hv  the  defendants  who  are  sued,  except  by  pleading  in  abatement 
the  fact  that  ho  is  living.1  It  seems  that  the  objection  is  available 
in  arrest  or  on  error,  but  the  fact  that  the  omitted  party  is  living 
must  appear  otherwise  than  by  the  presumption  of  life  which  the 
law  raises.2  Where  a  surviving  husband  sued  for  damages  to  the 
community  estate,  the  children  not  joining,  a  failure  to  tile  a  plea 
in  abatement  for  defect  of  parties  did  not  deprive  defendant  of  the 
right  to  have  plaintiff  restricted  to  a  recovery  of  damages  to  his 
own  interest.8 

Where  a  defect  of  parties  plaintiff  is  made  apparent  by  the  evi- 
dence, it  may  be  taken  advantage  of  on  the  trial,  though  not 
pleaded.4 

§  198.  Objections  for  want  of  parties  plaintiff,  how  taken. 

In  actions  on  contracts  the  misjoinder  or  non-joinder  of  parties 
plaintiff  may  be  taken  advantage  of  on  the  trial,  when  the  plea  of 
general  denial  has  been  filed,  as  well  as  by  demurrer  when  the  ob- 
jection is  apparent  on  the  face  of  the  petition,  or  by  plea  in  abate- 
ment.8 But  in  actions  by  persons  suing  in  a  representative  capacity, 
as  executors,  the  non-joinder  of  a  co-executor  can  be  taken  advan- 
tage of  only  by  a  plea  in  abatement.6  In  actions  for  torts  the  ob- 
jection of  misjoinder  of  a  proper  plaintiff  can  be  taken  by  a  plea  in 
abatement  only ;  but  the  defendant  may,  under  the  general  denial, 

1  Davis  v.  Willis,  43'T.  154 

2  Anderson  v.  Chandler,  18  T.  436.    For  a  decision  to  the  effect  that  a  release 
of  damages  by  parties  who  should  have  been  joined  as  plaintiffs  cannot  be  first 
shown  in  answer  to  a  motion  for  a  new  trial,  see  Railway  Co.  v.  Wilson,  85  T. 
516  (22  S.  W.  Rep.  578);  Ft,  W.  &  D.  C.  Ry.  Co.  v.  Wilson,  3  Civ.  App.  583  (24  S.  W. 
Rep.  686).    Where  A.  and  B.  are  joined  as  parties  plaintiff,  defendant  cannot 
comulain  because  judgment  was  rendered  in  favor  of  A.  alone.    B.  is  also  con- 
cluded by  the  judgment    Mo.  Pac,  Ry.  Co.  v.  Smith,  16  S.  W.  Rep.  803. 

After  partition  made  of  land,  the  various  parties  owning  in  severalty  the  sub- 
divisions sued  as  joint  owners  for  the  recovery  of  the  original  survey.  To  cure 
the  misjoinder  they  filed  an  agreement  made  with  the  defendants,  to  the  effect 
"that  the  plaintiffs  are  properly  joined  in  the  original  petition;  that  the  cause 
may  proceed,  and  the  rights  of  all  the  parties  be  determined  in  one  suit,  thus 
preventing  multiplicity  of  litigation."  Subsequently,  purchasers  pendente  lite 
from  the  original  defendants  were,  on  motion,  made  sole  defendants,  and  it  was 
held:  (1)  The  objection  sought  to  be  cured  by  the  agreement  did  not  go  to  the 
foundation  of  the  action,  but  to  the  manner  of  bringing  it.  (2)  It  was  binding 
on  the  parties  to  it.  (3)  It  was  binding  on  purchasers  pen dente  lite,  who  cannot 
ignore  the  agreements  on  file  of  those  from  whom  they  purchased.  Punchard 
v.  Delk,  55  T.  304. 

•Rowland  v.  Murphy,  66  T.  534  (1  S,  W.  Rep.  658). 

<Hollinmn  v.  Rogers,  6  T.  91;  Bailey  v.  Trammell,  27  T.  317. 

ftl  Chit.  PI.  208;  Gould's  PI.  275;  Holliman  v.  Rogers,  6  T.  97;  Stachely  v. 
Pierce,  28  T.  328. 

'  1  Saund.  PL  and  Ev,  14;  1  Chit.  PI.  20,  208. 


-.^  1'.''.'.  u'  OB.I  225 

prove  the  int«-r«  -t  of  the  ether  party,  who  is  not  in;ule  a  co-plaintiff 
in  the  suit,  for  the  purpose  of  apportioning  the  damages.1  If  too 
many  prr>»ns  be  made  co-plaintiffs,  the  objection,  if  it  appear  on 
the  record,  may  he  taken  advantage  of  either  by  demurrer,  in  arrest 
of  judgment,  or  by  writ  of  error;  or,  if  the  objection  does  not  ap- 
on  the  face  of  the  pleadings,  advantage  of  the  misjoinder  may 
be  taken  under  the  general  denial.2 

£  199.  Objections  for  want  of  proper  defendants,  how  taken. 

In  an  action  on  contract,  if  a  person  be  omitted  as  a  defendant 
who  ought  to  have  been  joined,  the  objection  can  only  be  taken  ad- 
\  antage  of  by  a  plea  in  abatement,  unless  it  appears  from  the  plead- 
ing of  the  plaintiff  that  a  person  not  made  a  defendant  in  the  suit 
was  a  joint  contractor  with  the  defendant,  and  that  such  person  is 
still  living  (as  he  must  be  presumed  to  be,  unless  the  contrary  is 
alleged),  when  such  non-joinder  is  a  good  ground  of  demurrer,  or 
motion  in  arrest  of  judgment,  or  may  be  assigned  for  error.8  If,  in 
an  action  upon  a  joint  contract,  too  many  persons  be  made  defend- 
and  the  objection  appear  on  the  pleadings,  either  of  the  de- 
fendants may  demur,  move  in  arrest  of  judgment,  or  support  a  writ 
of  error;  and  if  the  objection  do  not  appear  upon  the  pleadings, 
advantage  may  be  taken  of  it  under  the  general  denial,  as  the  plaint- 
iff, having  sued  upon  a  joint  contract,  cannot  recover  if  he  fail  in 
proving  a  joint  contract4. 

?'  2OO.  Objections  for  want  of  proper  parties,  when  made. 

It  is  too  late  to  set  up  the  want  of  proper,  but  not  necessary  par- 
t»y  answer  filed  upon  the  eve  of  trial,  and  the  cause  will  pro- 
ceed  without  them.5    If  the  want  of  parties  defendants,  essential  to 
the  derision  of  the  case,  appears  upon  the  hearing,  and  no  d< 
can  be  properly  rendered  without  having  such  parties  before  the 
court,  the   suit   will  be   continued  for  the  want  of  such   p:r 
with  leave  to  the  plaintiff  to  bring  them  in  by  supplemental  peti- 
tion, unless  it  appears  they  have  been  left  out  by  the  fraud  or  bad 
faith  of  the  plaintiff,  in  which   case   the  suit  will   be  disini- 
And  if,  upon  the  hearing,  there  appears  to  be  an  improper  joinder 
of  defendants,  the  plaintiff  can  dismi>s  as  to  the  defendants  improp- 

1  Croft  v.  Rains,  10  T.  530;  Watrous  v.  McGrew,  16  T.  506;  May  v.  Slade,  24  T. 

2  1  Chit  PI.  66. 

•uld's  I'l.  v.'7'J;  1  Saund.  PL  and  Ev.  14. 
•IChit.  !M.  H. 

irleson  v.  Burleson,  l.">  T. 

•  Peterson  v.  Poignard,  6  B.  Mon.  570;  Harder  v.  Harder.  2  Sand.  Ch.  17;  Hutch- 
inson  v.  Reed,  1  Hotf.  rh.  :!H5;   Rowland  v.  Yarman,  1  J.  J.  Marsh.  76;  3  Bibb, 
108;  McClure  v.  Erwin,  3  Cow.  313. 
15 


226  OBJECTIONS   FOE   DE7EOT   OF   PABTIES.  [§  201. 

erlv  joined,  and  against  whom  no  judgment  can  be  rendered,  and 
take  judgment  against  the  others.1 

The  want  of  necessary  parties  to  an  action  may  be  urged  after 
judgment  by  default  has  been  entered  against  those  who  have  been 
made  parties.2  The  objection  comes  too  late  when  made  for  the 
first  time  in  the  appellate  court,3  unless  the  defendant  has  been  in- 
jured by  the  want  of  necessary  parties.4  A  misjoinder  may  be 
waived.5 

£201.  Objection  for  want  of  parties,  how  obviated. 

The  defect  of  parties,  set  up  by  the  answer,  can  be  obviated  by 
dismissing  as  to  those  improperly  joined,  or  by  an  amendment  add- 
ing new  parties.6  So  new  parties  may  be  added  by  amendment  or 
supplemental  petition,  where  the  plaintiff  was  not  before  aware  of 
the  necessity  of  such  parties.  But  the  plaintiff  ought  not  to  be  al- 
lowed to  amend  by  bringing  in  new  parties,  and  thus  delay  the  trial 
of  the  case,  where  he  might,  with  the  use  of  ordinary  diligence,, 
have  discovered  the  necessary  parties,  and  where  the  objection  for 
the  want  of  parties  proceeds  from  himself.7  Neither  will  an  amend- 
ment be  allowed,  making  new  parties,  where  it  is  apparent  that  the 
plaintiff  is  entitled  to  no  relief  under  any  circumstances.8 

1  Austin  v.  Jordan,  5  T.  130;  Dean  v.  Duffield,  8  T.  235;  Horton  v.  Wheeler, 
17  T.  52;  Cook  v.  Phillips,  18  T.  31;  White  v.  Leavitt,  20  T.  703;  Payne  v.  Bent- 
ley,  21  T.  452;  Shipman  v.  Aller,  29  T.  17. 

»  Ebell  v.  Bursinger,  70  T.  120  (8  S.  W.  Rep.  77);  Anderson  v.  Chandler,  18  T.  436. 

»Caruth  v.  Grigsby,  57  T.  259;  Hill  v.  Newman,  67  T.  265  (3  S.  W.  Rep.  271). 

4  Sears  v.  Green,  1  U.  C.  727;  Hughes  v.  Roper,  42  T.  125;  Herndon  v.  Bre- 
mond,  17  T.  434. 

»McFadden  v.  Schill,  84  T.  77  (19  S.  W.  Rep.  368);  Delk  v.  Punchard,  64  T.  360. 

6  Austin  v.  Jordan,  5  T.  130;  Dean  v.  Duffield,  8  T.  235;  Horton  v.  Wheeler,  17 
T.  52;  Cook  v.  Phillips,  18  T.  31;  White  v.  Leavitt,  20  T.  703;  Payne  v.  Bentley, 
21  T.  452;  Shipman  v.  Aller,  29  T.  17. 

^  1  Dav.  Ch.  Pr.  336. 

« Story 's  Eq.  PL  541;  Russell  v.  Clark,  7  Cranch,  69,  90;  1  Dav.  Ch.  Pr.  336. 


CHAPTER  IX. 


INTERVENTION  OF  THIRD  PARTIES. 


§  202.  Intervener  defined;  who  may  in- 
tervene. 

903.  Defendant  may  require  party  in 

interest  to  intervene. 

904.  Notice  of  intervention;  leave  of 

court 
Right  of  plaintiff  to  dismiss. 

206.  Rights  and  duties  of  intervenes 

207.  Dismissal  of  intervention. 

208.  Owner  of  note  may  intervene  in 

a  suit  brought  by  another. 

209.  Assignee  of  a  chose  in  action 

pendente  lite  may  intervene. 


210.  The  owner  of  personal  property 

may  intervene    in  a  suit  re- 
specting it  brought  by  another. 

211.  Rights  of  purchaser  pendente  lite, 

212.  In  actions  affecting  title  to  prop- 

erty. 

213.  In  trespass  to  try  title;  owner 

of  land  may  intervene  in  a  suit 
against  his  tenant 

214.  Rights  of  lienholders. 

•-.'I-1}.  Where  property  is  seized  under 

attachment,  execution,  etc, 
216.  Rights  of  attaching  creditors. 


202.  Intervener  defined;  who  may  intervene. 

An  intervener  is  one  who,  having  an  interest  in  the  subject-mat- 
oluntarily,  or  at  the  instance  of  either  party,  is  made  a  party 
to  the  suit,  and  may  claim  adversely  to  either,  or  to  both.1 

Any  one  who  is  competent  to  sue  or  to.be  sued  may,  by  leave  of 
the  court,  and  upon  notice  to  the  parties,  intervene  in  a  suit  between 
other  parties,  where  he  has  an  interest  in  the  subject-matter  of  the 
suit  which  can  be  affected  by  the  decree;  and  he  may  join  the 
plaintiff  in  asking  the  relief  claimed  by  him,  or  any  relief  appropri- 
ate to  the  suit;  or  he  may  join  the  defendant  in  resisting  the  plaint- 
iff's claim;  or  he  may  oppose  the  relief  claimed  by  both  parties.2 
The  interest  authorizing  an  intervention  must  be  an  interest  in  the 
•object-matter  of  the  original  suit.  Thus,  where  suit  is  brought  on 
count,  and  an  attachment  is  levied  upon  property,  one  holding 
the  property  as  assignee  for  the  benefit  of  creditors  cannot  inter- 
vene and  claim  the  property.  The  property  is  not  the  subject- 
•T  of  the  suit.  The  remedy  of  the  assignee  is  either  by  trial 
of  the  right  of  property,  or  suit  against  the  sheriff  for  damages,  or 
against  the  purchaser  at  sheriffs  sale  for  the  recovery  of  the  prop- 
erty.1 

1  Williams  v.  Wright,  20  T.  499;  Smalley  v.  Taylor,  33  T.  668;  Graves  v.  Hall, 
27  T.  14s:  Mi-Xi-ill  v.  Lt-KK.  2  T.  428. 

»GaiTett  v.  Gaines,  6  T.  435;  7  La.  R  (N.  S.)  196;  Pierre  v.  Massey,  7  Mart 
1%:  Mussina  v.  Goldthwaite,  84  T.  125;  Jaffray  v.  Meyer,  1  App.  C.  C., 
•'.»:  Smith  v.  Allen,  28  T.  498. 
» Jaffray  v.  Meyer,  1  App.  C.  C.,  §  1380;  Meyberg  v.  Steagall,  51  T.  351;  Pool  v. 


228  INTERVENTION    OF   THIRD   PARTIES.  [§  202. 

There  is  no  statute  in  this  state  providing  for  the  right  of  inter- 
vention, but  it  is  said  that  the  practice  on  the  subject  is  probably 
derived  through  the  ecclesiastical  courts  of  England,  and  the  modifi- 
cations of  the  civil  law  as  found  in  the  state  of  Louisiana,  and  rests 
ujMin  the  principle  that  a  party  should  be  permitted  to  do  that 
voluntarily  which,  if  known,  a  court  of  equity  would  require  to  be 
done.1  Due  regard  should  be  had  to  the  advantages  of  intervention 
in  preventing  a  multiplicity  of  suits,  and  it  is  necessary,  also,  to 
guard  against  its  disadvantages.  It  is  a  practice  liable  to  abuse,  has 
a  tendency  to  multiply  the  issues,  imposes  frequently  great  additional 
labor  and  responsibility  upon  the  trial  judge  properly  to  present 
the  issues  to  the  comprehension  of  the  jury,  and  tends  to  confusion 
in  the  trial  of  causes.2  The  rule  has  been  stated  thus:  "If  any 
third  person  consider  that  his  interest  will  be  affected  by  a  cause 
which  is  pending,  he  is  not  bound  to  leave  the  care  of  his  interest 
to  either  of  the  litigants,  but  has  a  right  to  intervene  or  be  made  a 
party  to  the  cause,  and  to  take  on  himself  the  defense  of  his  own 
rights,  provided  he  cl6es  not  disturb  the  order  of  the  proceedings." 3 
In  Louisiana,  a  state  to  which  we  may  properly  look  for  light  on 
the  question,  it  has  been  held4  that  to  give  the  right  the  intervener 
should  have  with  one  of  the  original  parties  a  union  of  interest  in 
relation  to  the  subject-matter  of  the  suit,  and  that  this  interest 

Sanford.  52  T.  621;  Noyes  v.  Brown,  75  T.  458  (3  S.  W.  Rep.  36);  Stansell  v.  Flem- 
ing, 81  T.  294  (16  S.  W.  Rep.  1033);  Hanna  v.  Drennan,  2  U.  C.  536.  Where  the 
subject-matter  of  a  suit  is  rent  due,  one  claiming  a  mortgage  lien  on  property 
on  which  the  distress  warrant  is  levied  cannot  intervene;  his  interest  is  not  in 
the  subject-matter.  Fisher  v.  Bogarth,  2  App.  C.  C.,  §  120. 

A.  sued  B.  to  recover  a  debt,  and  levied  an  attachment.  C.,  a  creditor  of  A., 
in  order  to  reach  the  debt  sued  for,  garnished  B.,  and  intervened  in  the  suit  of 
A.  against  B.,  alleging  the  insolvency  of  both  A.  and  B.  It  was  held  that  C.  had 
no  such  interest  in  the  subject-matter  of  the  suit  as  gave  him  the  right  to  inter- 
vene —  that  the  garnishment  gave  him  no  such  right,  by  way  of  lien  or  other- 
wise. Noyes  v.  Brown,  75  T.  458  (3  S.  W.  Rep.  36). 

Partners  by  consent  dissolved,  P.  taking  the  stock  and  assuming  the  firm 
debts.  He  made  a  note  to  the  outgoing  partner,  S.,  for  balance  on  the  purchase. 
The  sale  was  public.  The  change  of  the  firm  was  made  known  to  its  creditors. 
The  outgoing  partner  on  maturity  of  his  note  brought  suit  against  P.  and  at. 
tached  property.  F.,  a  firm  creditor,  intervened  and  obtained  judgment  against 
both  the  parties,  and  decree  for  sale  of  the  attached  property.  Objections  to. 
the  intervention  of  F.  should  have  been  sustained.  He  showed  no  interest  in 
the  subject  of  the  litigation  between  the  parties  to  the  suit.  Stansell  v.  Flem- 
ing, 81  T.  294  (16  S.  W.  Rep.  1033). 

Where  suit  is  brought  to  recover  the  value  of  timber  sold,  a  third  person  who 
claims  the  land  has  no  right  to  intervene  to  recover  the  value  of  the  timber.  Mel- 
vin  v.  Chancy,  8  Civ.  App.  252. 

1  Whitman  v.  Willis,  51  T.  421;  Pool  v.  Sanford,  52  T.  621. 

2  Whitman  v.  Willis,  51  T.  421. 

3  2  Chitty's  Gen.  Prac.  492,  cited  with  approval  in  Pool  v.  Sanford,  52  T.  621. 
«  Brown  v.  Saul,  4  Mart.  (N.  S.)  434. 


•3.]  INTi  N    i'F    THIRD    PASTIES. 

should  1).'  fi.undrd  «>n  some  riLrlit,  claim  or  lien,  either  conventional 
or  le^al.  directly  and  closely  connected  with  this  subject-matter. 
Thi-  following  statement  by  Pomeroy '  is  approved:  "Theinter- 
vener's  interest  must  be  such  that,  if  the  original  action  had  never 
been  commenced,  and  lie  had  first  brought  it  as  sole  plaintiff,  he 
would  have  been  entitled  to  recover  in  his  own  name  to  the  extent 
•f  a  part  of  the  relief  sought;  or  if  the  action  had  first  been 
brought  against  him  as  a  defendant,  he  would  have  been  able  tode- 

:he  recovery,  in  part  at  least.     His  interest  may  be  either  legal 

I  u  i  table."2 

Where  personal  property  has  been  sold  with  warranty  of  title, 
and  the  purchaser  is  sued  for  the  property  by  a  third  party,  the 
seller  has  the  right  to  intervene  and  defend  the  suit.* 

§  203.  Defendant  may  require  party  in  interest  to  intervene. 

Where  the  defendant  in  any  suit  upon  any  contract,  or  for  the 

recovery  of  personal  property,  shows  by  his  answer  that  a  third 

claims  the  same  thing  by  a  different  or  separate  interest, 

without  collusion  with  him,  or  that  he  is  ready  to  pay  or  dispose 

thereof,  but  does  not  know  to  whom  of  right  it  belongs,  such  third 

1  Remedies  and  Remedial  Rights,  £  430. 

2  Pool  v.  Sanford,  52  T.  621;  Del  Rio  Building  &  L.  Ass'n  v.  King.  71  T.  729  (12 
S.  \V.  Rep.  65).     After  the  death  of  the  wife  the  husband  executed  a  deed  of 
tru^t  upon  lands.    In  the  deed  the  rights  of  the  wife's  children  were  exj»i 

i.  In  a  suit  by  the  holder  of  the  claim  to  foreclose,  the  children  of 
the  wile  were  not  entitled  to  intervene.  The  foreclosure  would  not  affect  their 
ri_'lits  in  the  lands.  The  defendant  in  the  suit  could  not  complain  of  the  re- 
fusal of  the  court  to  allow  such  intervention.  Hinzie  v.  Kempner,  82  T.  617  (18 
S.  W.  Rep.  659). 

This  suit  was  brought  by  a  prior  incumbrancer  to  enjoin  the  sale,  by  the 
sheriff,  of  several  tracts  of  land  attached  in  a  suit  instituted  by  K.  against  W., 
which  suit  resulted  in  judgment  for  K.  and  a  foreclosure  of  the  attachment, 
and  an  order  for  the  sale  of  the  attached  property.  C.  intervened  in  the  pres- 
ent suit,  alleging  that  he  was  surety  for  the  debt  upon  which  K.  obtained  his 
»?nt,  and  that  the  judgment  provided  that,  in  case  it  was  not  satisfied  out 
of  the  property  of  W..  l.-\  y  should  be  made  upon  the  property  of  C.  He  was 
prop. -rly  allowed  to  intervene.  Ivory  v.  Kempner,  2  Civ.  App.  474  (21  S.  W.  Rep. 
1006).  Where  trust  funds  were  loaned,  and  the  borrower  made  an  asM^-ntm-nt. 
and  the  rcsttii  <me  trust  brought  suit  to  establish  a  priority,  it  was  not  error  to 
j>  -runt  ot'm-r  creditors  to  intervene.  Mills  v.  Swearingeu,  67  T.  209  (3  S.  W.  Rep. 

mil 

An  administrator  brought  suit  on  a  note,  and  to  recover  the  sum  of  $*?00,  which 
was  the  amount  of  a  fee  he  alleged  he  ha«l  promise. 1  to  j>ay  his  attorney*  in  <!»•- 
fen. ling  himself  against  an  attempt  on  the  j«irt  of  defendant  to  remove  him 
from  tin-  administration.  He  asked  that  liis  said  attorneys  be  allowed  to  inter- 
vene in  the  suit  and  have  a  judgment  out  of  the  recovery  for  the  said  sum  of 
f900.  It  was  held  that  the  attorneys  hud  no  such  interest  in  the  subject- 
mutt. T  as  entitled  th»-m  to  intervene.  Rol>l>  v.  Smith.  40  T.  89. 

*  Parker  v.  Nolan,  37  T.  85.  Upon  an  application  to  appoint  :\  trustee,  any  per- 
son claiming  the  alleged  trust  projMTty  may  intervene,  resist  the  appointment, 
and  appeal  Bass  v.  Fontleroy,  11  T.  698. 


230  INTERVENTION    OF    THIRD   PARTIES.  [§  204. 

person  may  be  required  to  interplead  at  the  next  term  of  the  court, 
and  maintain  or  relinquish  his  claim  against  the  defendant.  The 
original  defendant  should  show  cause  for  the  interpleader  of  a  third 
purtv,  at  the  earliest  possible  moment;  and  he  will  not  be  per- 
mitted to  delay  a  case  unnecessarily,  or  without  good  cause,  for  the 
purpose  of  bringing  in  such  party.  If,  however,  the  intervener  is 
a  necessary  party  defendant,  or  if  the  court  would  have  ordered 
him  to  be  made  defendant  upon  the  suggestion  of  either  party,  or 
if  he  has  been  made  defendant  upon  the  application  of  the  orig- 
inal defendant,  or  if  he  is  the  real  owner  of  land,  and  his  tenant, 
in  possession,  is  sued,  he  is  entitled  to  all  the  privileges  peculiar  to 
defendants.1 

8  204.  Notice  of  intervention;  leave  of  court.' 

The  right  to  intervene  in  a  suit  is  by  leave  of  court  and  upon  no- 
tice to  the  parties.2  An  intervention  by  leave  of  court,  and  setting 
out  the  facts  relied  upon,  is  sufficient  without  a  formal  interplead- 
ing.3  As  a  general  rule,  an  intervener  must  give  notice  to  all  the 
parties  to  the  cause,  because  they  are  generally  interested  in  what- 
ever claim  he  may  set  up.  But  a  party  having  no  interest  need  not 
be  cited.4  It  is  also  held  that  parties  properly  before  the  court  are 
required  to  take  notice  of  a  petition  of  intervention,  filed  by  leave 
of  court,  and  though  at  the  time  of  such  intervention  and  judgment 
for  intervener  one  of  the  defendants  against  whom  judgment  was 
rendered  was  dead,  and  another  temporarily  insane,  yet,  the  court 
having  acquired  jurisdiction  over  them,  and  they  having  appeared 
and  answered,  being  represented  by  counsel,  and  no  suggestion 
being  made  of  record  of  the  death  or  insanity,  the  judgment  ren- 
dered was  not  a  nullity,  but  was  only  voidable;5  that  every  party 
who  has  appeared  in  court  before  the  filing  of  a  petition  in  inter- 
vention is  charged  with  notice  of  the  petition  in  the  same  manner 
and  to  the  same  extent  as  if  he  had  been  specially  cited  to  an- 
swer it.6 

» Williams  v.  Wright,  20  T.  499;  Story's  Eq.  PI.  291-299;  R.  S.  5253;  Pac.  Ex- 
press  Co.  v.  Williams,  2  App.  C.  C.,  g  810. 

2  Williams  v.  Dennis,  1  App.  C.  C.,  §  1233;  Jaffray  v.  Meyer,  1  App.  C.  C.,  §  1350; 
Smith  v.  Allen,  28  T.  497. 

'Simpson  v.  Grinnan,  2  U.  C.  136,  citing  Iglehart  v.  Moore,  21  T.  504;  Taylor 
v.  Gillean,  23  T.  517. 

4  Peters  Furniture  Co.  v.  Dickey,  2  U.  C.  237. 

5  Fleming  v.  Seeligson,  57  T.  524. 

•  Deering  v.  Hunt,  2  S.  W.  Rep.  42.  Where  suit  was  brought  for  damages  for 
destruction  of  crops,  it  was  held  that  one  jointly  interested  in  the  crops  was  a 
proper  party  plaintiff,  but  that  he  could  not  come  in  by  intervention  after  the 
case  had  been  appealed  to  the  county  court.  G.,  C.  &  S.  F.  Ry.  Co.  v.  Ford,  3 
App.  C.  C.,  §  147.  One  filing  a  plea  of  intervention  is  not  considered  a  party  to 
the  cause  if  the  plea  is  not  called  to  the  attention  of  the  court  or  after  an  order 
striking  it  out  Mills  v.  Paul,  30  S.  W.  Rep.  242. 


'3,  206,]  INTERVENTION   OF   THIRD    PARTIES.  231 

105.  Right  of  plaintiff  to  dismiss. 

It'  a  petition  in  intervention  shows  such  interest  in  the  subject- 
matter  of  the  litigation  between  the  parties  as  would  entitle  the  in- 
tervener  t<>  maintain  an  independent  action  against  the  plaintiff  or 
those  represented  by  him.  and  to  have  the  relief  sought,  in  whole 
or  in  part,  then  the  intervention  would  not  be  affected  by  a  dismis- 
sal by  the  plaintiff  of  the  action,  and  it  would  not  be  material 
whether  the  disposition  of  the  case  amounted  technically  to  a  non- 
suit or  a  discontinuance.     If  no  such  independent  cause  of  action 
.own  in  the  intervention,  then  no  error  would  exist  in  the  dis- 
1  of  the  intervention  upon  the  dismissal  by  the  plaintiff.1     If 
a  petition  by  an  intervener  shows  by  its  averments  that  he  h;i~ 
interest  in  the  subject-matter  of  litigation,  and  a  cause  of  action 
airainst  either  the  plaintiff  or  defendant,  it  is  his  privilege  to  prose- 
his  suit  to  final  judgment,  and  it  is  error  in  the  court  to  dis- 
a  his  suit  on  nonsuit  by  the  plaintiff.2 

After  the  parties  to  a  pending  suit  have  agreed  upon  a  settle- 
ment of  the  matter  in  controversy,  and  that  the  suit  shall  be  dis- 
••'1.  it  is  too  late  for  a  third  party  to  intervene  without  leave  of 
court,  although  no  order  of  dismissal  has  been  entered.3 

?•  206.  Rights  and  duties  of  intervener. 

While  the  right  to  intervene  in  a  proper  case  will  not  be  denied. 
the  intervener  must  assert  his  rights  promptly.  He  will  not  be  per- 
mitted to  retard  the  principal  suit;4  neither  can  he  except  to  mere 

to  v.  Farmers'  L.  &  T.  Co.,  81  T.  530  (17  S.  W.  Rep.  60). 
inch  v.  Jones,  2  Civ.  App.  550  (22  S.  W.  Rep.  245).    This  was  a  suit  to  re- 
cover certain  lands.    A  third  party  intervened,  answered  the  petition,  and 
claimed  an  interest  in  a  part  of  the  lands.    Both  plaintiff  and  defendants  an- 
1  the  petition  of  intervention,  and  afterwards  the  defendants  withdrew 
tla-ir  answers,  and  plaintiff  took  a  nonsuit,  and  it  was  held  that  if  the  plea  of 
intervention  had  shown  an  interest  in  the  subject-matter  of  litigation  it  would 
have  been  error  to  permit  the  nonsuit     It  was  held  further,  however,  that  tin- 
law  gives  the  surveyor  who  locates  certificates  for  another  no  interest  in  the 
located  upon;  that  the  petition  disclosed  no  contract  between  the  inter- 
as  surveyor,  and  the  defendants,  by  which  the  former  was  to  have  a  por- 
tion of  the  land  in  controversy  for  his  services;  that  therefore  the  intervener 
had  no  interest  in  the  subject-matter  of  the  suit,  and  it  was  not  error  to  allow 
tli-    plaintiff  to  take  a  nonsuit,  and  the  defendants  to  withdraw  their  answers 
aii-l  to  dismiss  the  suit. 

3  Lambie  v.  Wibert,  31  S.  W.  Rep.  225.    In  a  suit  brought  by  a  creditor  to  sub- 

property,  alleged  to  have  been  fraudulently  conveyed,  to  the  claims  of  him- 
;iid  the  creditors  of  the  estate,  a  compromise  and  agreement  to  dism:- 
-nit   made  between  the  original  plaintiff  and  defendant,  cannot  affect  the  ri^ht 
of  a  creditor  who  has  intervened  by  leave  of  the  court  to  have  his  rights  as  a 
•T.  ditor  adjudicated.     An  order  dismissing  the  suit  alter  such  intervention  and 
dismissing  the  petition  of  intervention  is  error,  for  the  original  action  could 
only  have  been  maintained  when  brought  for  the  benefit  of  all  the 
v.  Duk.-s.  58  T.  96. 

4  Smith  v.  Allen,  2S  T.  497;  Smalley  v.  Taylor,  33  T.  668.     Where  suit  was 


232  INTERVENTION    OF    THIRD    PARTIES.  [§  206.. 

formal  defects  or  irregularities,  not  going  to  the  merits  or  founda- 
tion of  the  action.1  He  cannot  change  the  nature  of  the  suit,  or 
ivtjuire  the  introduction  of  a  new  party.2 

When  the  original  defendant  has  not  filed  an  answer  to  the  orig- 
inal petition,  he  must  be  cited  to  answer  the  petition  of  interven- 

menced  in  August,  1852,  and  a  petition  of  intervention  was  filed  in  March,  1853, 
one  day  before  the  case  was  called  for  trial,  and  it  did  not  appear  to  have  beeu 
brought  to  the  notice  of  the  court  or  the  plaintiff  until  after  the  cause  was 
called  for  trial,  and  the  omission  to  present  it  at  an  earlier  day  was  not  accounted 
for,  the  court  refused  to  permit  the  party  to  intervene,  and  required  the  original 
parties  to  proceed  to  trial.  Van  Bibber  v.  Geer,  12  T.  15.  In  an  original  petition 
parties  joined  as  plaintiffs  as  heirs  and  devisees  of  Paul  Bremond,  owner  of  all 
the  stock  of  a  railway  company.  At  the  time  of  the  trial  these  parties  by 
amended  petition  set  up  claim  to  one-half  the  railway,  upon  the  alleged  facts 
that  Paul  Bremond  had  used  in  the  construction,  etc.,  of  the  railway  the  com- 
munity property  of  himself  and  his  deceased  wife,  through  whom  they  claimed 
as  her  heirs;  also  attacking  the  alleged  incorporation  and  its  records  as  fictitious 
and  in  fraud  of  their  rights  as  heirs  of  Mrs.  Bremond.  This  amended  petition 
introduced  a  new  and  distinct  cause  of  action  and  was  an  abandonment  of  the 
first,  and  was  calculated  to  protract  the  litigation.  It  was  properly  treated  as 
an  original  plea  in  intervention  filed  on  the  eve  of  trial.  The  court's  action  in 
sustaining  exceptions  to  it  and  dismissing  it  without  prejudice  approved.  Mc- 
Ilhenny  v.  Binz,  80  T.  1  (13  S.  W.  Rep.  655). 

When  the  intervener  filed  his  petition  on  the  eighth  day  of  the  return  term, 
and  on  the  same  day  the  case  was  called  for  trial,  it  was  held  that  the  court 
below  erred  in  refusing  to  entertain  the  petition.  Eccles  v.  Hill,  13  T.  65. 

JThe  rules  in  relation  to  the  plea  of  intervention  are  not  well  settled.  There 
is  no  doubt  that  a  third  party  may  intervene  in  a  suit  between  others,  for  the 
protection  of  his  own  rights.  But  this  cannot  be  permitted  where  it  would  re- 
tard the  principal  suit  so  as  to  operate  injustice  to  others.  Eccles  v.  Hill,  13  T.  65. 
It  may  well  be  questioned  whether  the  intervener  could  be  permitted  to  except 
to  the  proceedings  for  mere  formal  defects  or  irregularities  not  going  to  the 
foundation  of  the  action,  but  he  may  interpose  a  general  demurrer  going  to  the 
merits  of  the  action.  Hanchett  v.  Gray,  7  T.  549;  Smith  v.  Allen,  28  T.  497. 

JWhen,  in  the  original  petition  for  a  mandamus,  it  was  averred  that  a  cer- 
tificate was  the  property  of  the  husband,  it  was  held  that  if  he  was  not  estopped 
by  such  averment,  the  wife  certainly  could  not,  by  an  intervention  in  which 
she  was  joined  by  her  husband,  change  the  character  of  the  title  to  the  property 
purchased,  from  community  property  to  the  separate  estate  of  the  wife,  and 
thereby  defeat  a  defense  which  would  be  good  against  the  original  action.  Hol- 
loway  v.  Holloway,  30  T.  164.  The  Houston  City  Mills  Manufacturing  Company 
was  incorporated  in  1864,  with  a  capital  stock  of  §500,000.  In  1868  shares  had 
been  taken  in  the  capital  stock  to  the  amount  of  $75,000.  On  the  9th  of  June, 
1868,  there  were  issued  by  the  company  $100.000  in  bonds,  payable  to  G.  G.  or 
bearer;  at  the  same  time  the  company  mortgaged  its  corporate  property  to 
G.  G.  as  trustee  for  the  holders  of  the  bonds,  to  secure  their  payment.  The  com- 
pany failed  to  pay  the  interest  on  the  bonds.  G.  G.  filed  his  petition  on  the  23d 
of  April,  1870.  in  which  he  claimed  that  the  principal  and  interest  of  the  bonds 
had  become  due,  and  sought  to  foreclose  the  mortgage  iu  favor  of  certain  bond- 
holders. S.  M.  filed  a  plea  of  intervention,  as  the  owner  of  six  shares,  of  $500 
each,  in  the  capital  stock  of  the  company,  alleging  fraud  in  the  corporate  offi- 
cers, and  collusion  between  the  plaintiff  and  defendant.  It  was  held  that  an 
intervener,  claiming  an  interest  in  the  subject-matter  in  dispute,  may  interpose 
his  claim  as  a  defendant  to  the  suit,  having  been  made  such  by  leave  of  the 


§206.]  IN  II.  N    oK    THIRD    PARTIES.  23$ 

tion,  as  in  an  original  suit.1  An  intervention,  which  in  its  conse- 
quences, if  the  intervener  should  prove  successful,  would  result  in 
••oniuLr  the  determination  of  the  cause  as  between  the  original 
parties,  will  not  be  allowed.  Hence,  one  who  claims  a  small  undi- 
vided interest  in  the  land  involved  in  a  suit,  and  also  an  in; 
besides  in  the  survey  of  which  it  formed  a  part,  not  involved  in  the 
litigation,  and  in  which  the  plaintiff  claims  no  interest,  should  not 
be  allowed  to  intervene.  To  allow  it  would  result  in  complicating 
the  case  by  producing  new  parties  and  causes  of  action.  Since  the 
judgment  could  not  affect  the  rights  of  the  intervener,  he  should 
1 1  to  an  independent  action.3 

One  who  intervenes  in  a  cause  must  accept  the  case  as  to  all  pre- 
vious orders  made  and  papers  filed,  including  depositions  as  they 
appear  at  the  time  of  intervening.  He  cannot  object  to  depositions 
already  taken  on  the  ground  that  he  had  no  opportunity  to  pro- 
pound cross-interrogatories.  But  it  would  seem  that  he  would  not 
be  precluded  from  taking  action  in  time  to  secure  answers  to  cross- 
interrogatories  propounded  by  him  to  a  witness  who  had  been  ex- 
amined before  his  intervention.* 

Where,  at  the  time  the  intervener  gets  leave  and  comes  in,  the 
whole  interest  in  the  property  is  in  controversy  in  the  suit,  he  may 
litigate  his  right  to  the  entire  property.4  "Where  he  makes  himself 
a  party  to  secure  his  interest  in  property  involved  in  litigation  be- 
tween a  plaintiff  and  defendant,  in  making  defense  of  his  own  right, 
he  can  plead  and  prove  anything  which  can  or  will  be  a  defense  to 
the  plaintiff's  case,  so  far  as  it  might  affect  his  own  claim.  He  does 
not,  however,  become  the  protector  of  the  defendant,  nor  can  the  de- 
fendant derive  any  aid  in  his  own  case  beyond  what  may  be  brought 
into  it  supported  by  his  own  defense,  as  made  in  his  answer.  If  the 
defendant's  pleadings  do  not  admit  of  evidence  of  payment  or  sat- 
isfaction of  a  note  sued  on,  he  cannot  defend  or  receive  the  bene- 
fit of  such  defense  made  by  the  intervener,  but  the  intervener' s 
riirhts  cannot  be  injured  by  the  defendant's  conduct  of  his  own  de- 
fense.4 

court,  the  better  to  protect  his  interests:  and  if  there  be  fraud  and  collusion  be- 
tween the  original  parties,  whereby  his  interests  are  compromised  or  prejudii ••••!. 
he  may  set  it  up  affirmatively  and  prove  it,  and  thereby  defeat  any  fraudulent 
.  intended  to  be  carried  out  by  the  suit  Mussina  v.  Goldthwaite,  34 T.  \~~>. 

1  Bryan  v.  Lun.l.  -J.'.  T.  98. 

'Ragland  v.  Wisnx -k.  «i  T.  391. 

»Raiubolt  v.  March.  :•-.'  T 

« Fleming  v.  S.-.-li^son,  57  T.  524 

»  Brown  v.  Mitchell.  1  U.  C.  37:5.     It  was  held  in  this  case  that  a  plea  by  the 

int.  rv.-ri.T  that  the  deft-ndant  had,  "on  Nc>v.Miil»-r  1.  ls?l,  fully  accounted  with 

tin-  plaintiff,  and  settli-l  ami  fully  discharged  the  note  on  winch  plaintiff  brings 

iit  to  the  full  N.-iti-J'a'-ti'in  «f  plaintiff,  ami  any  cause  of  action  or  right  or 

lien  that  may  ever  ha \«'  .\i-t-.l  Ktu..  n  plaintiff  ami  defendant,  by  and  under 


234  .INTERVENTION   OF   THIRD   PARTIES.  [§  207. 

Interveners  may  occupy  the  positions  of  either  plaintiffs  or  de- 
fendants, and  all  the  elements  of  a  cause  of  action  or  ground  of 
•defense  may  be  contained  in  their  pleading,  and  parties  may  como 
into  court  as  effectually  by  that  method  as  by  original  suit.1  It 
seems  that  where  there  is  no  conflict  of  interest  between  a  party 
and  an  intervener  they  may  be  represented  by  the  same  attorney.2 

S  207.  Dismissal  of  intervention. 

On  sustaining  exceptions  to  an  intervention  the  judgment  should 
dismiss  the  bill  without  prejudice  to  the  claim  sought  to  be  set  up.3 
A  petition  of  intervention,  when  improperly  filed,  may  be  dismissed 
on  motion  as  well  as  upon  demurrer.  If  the  petition  shows  a  cause 
of  action  on  which  the  intervener  may  recover  in  any  suit,  but  de- 
fectively stated,  a  demurrer  affords  the  remedy  to  one  adversely 
interested;  but  when  the  cause  of  action,  though  good,  does  not 
authorize  an  intervention  in  the  particular  suit,  a  motion  to  dismiss 
is  proper.4 

An  intervener  against  whom  no  affirmative  relief  is  asked  by  the 
pleadings  of  the  other  parties  to  the  cause  occupies  so  much  the 
position  of  a  plaintiff  that  the  only  proper  action  to  take  with  re- 
gard to  him  when  he  fails  to  appear  is  to  dismiss  his  suit  for  want 
of  prosecution.5  An  intervention  allowed  without  authority  of 
law  by  the  trial  court  was  dismissed  on  appeal  without  prejudice 
to  the  claim,  burdened,  however,  with  all  costs  incurred  by  reason 
of  the  intervention.6  No  exceptions  being  taken  to  the  action  of 
the  court  dismissing  an  intervention,  and  the  bond  for  appeal  being 

«aid  note,"  was  sufficient  to  admit  evidence  of  satisfaction,  and  sustaining  ex- 
ceptions thereto  was  erroneous. 

i  Ivey  v.  Harrell,  1  Civ.  App.  226  (20  S.  W.  Rep.  775).  It  was  held  in  this  case 
that  if  by  an  intervention  other  land  was  improperly  made  a  subject  of  contro- 
versy, the  action  of  the  court  in  allowing  it  might  be  irregular,  but  its  jurisdic- 
tion would  not  be  affected;  but  whether  such  a  state  of  facts  was  shown  as  to 
make  it  proper  to  bring  all  the  land  in  or  not,  the  parties  were  before  the  court, 
•seeking  to  litigate  over  a  subject  of  which  it  had  jurisdiction,  and  its  judgment 
entertaining  and  determining  their  suit  could  not  be  collaterally  attacked. 

While  an  iutervener  is  not  bound  by  a  statement  of  facts  not  signed  by  her 
counsel,  or  a  judgment  on  writ  of  error  regarded  as  passing  on  her  rights,  yet 
where  she  adopts  the  allegations  of  the  plaintiff  and  prays  for  the  same  reme- 
•dies,  the  judgment  affects  alike  both  plaintiff  and  intervener.  Hudson  v.  Morris, 
55  T.  596. 

An  intervener  is  not,  on  appeal,  entitled  to  a  reversal  of  a  judgment  in  favor 
of  an  original  party  to  the  suit,  which  could  not  operate  to  his  injury,  when  the 
party  against  whom  the  judgment  was  rendered  had  neither  appealed  nor  as- 
signed errors.  Rainbolt  v.  March,  52  T.  246. 

2Deering  v.  Hurt,  2  S.  W.  Rep.  42. 

»  Del  Rio  Building  Ass'n  v.  King,  71  T.  729  (12  S.  W.  Rep.  65). 

«Ragland  v.  "Wisrock,  61  T.  391. 

'Noble  v.  Meyers,  76  T.  280  (13  S.  W.  Rep.  229). 

•ostansell  v.  Fleming,  81  T.  294  (16  S.  W.  Rep.  1033). 


§§208,209.]  I.NTKUVKMIt'.V    OF    THIRD   PARTIES.  235 

executed  by  defendant  alone,  and  made  payable  to  plaintiff  alone, 
the  interveners  were  not  parties  to  the  appeal,  and  assignment  of 
errors  by  them  would  not  be  considered.1 

i  208.  Owner  of  note  may  intervene  in  suit  brought  by  another. 

An  intervene!-  alleged  that  the  notes  sued  on  had  been  by  him 
placed  in  the  hands  of  an  agent  for  collection ;  that  the  agent  and 
another, intending  to  defraud  the  intervener,  brought  the  suit  upon 
them  against  the  makers,  and  that  the  notes  were  the  property  of 
the  intervene!-,  and  were  never  indorsed  or  transferred  by  him  to 
any  one;  it  was  held  that  he  had  the  right  to  intervene  and  claim 
the  benefit  of  the  original  suit,  to  the  exclusion  of  the  bar  of  the 
statute  of  limitation,  and  that  the  nominal  plaintiffs  in  the  said 
suit  could  not  defeat  his  right  after  iiling  of  petition  of  interven- 
tion, and  notice  to  them  by  dismissing  the  suit.2  S.  instituted 
suit  against  B.,  and,  having  died  pending  the  suit,  his  widow  peti- 
tioned to  revive  as  only  heir;  whereupon  M.  claimed  the  negoti- 
able security  declared  upon,  as  intervener,  and,  upon  consultation 
between  the  widow  and  the  intervener,  the  right  was  decided  in 
favor  of  the  intervener,  and  thereafter  he  prosecuted  the  suit  in  his 
own  name  to  judgment.  It  was  held  that  there  was  no  error.3  An 
administrator  of  K.  brought  suit  upon  a  note  payable  to  the  e\ 
tors  of  K.  One  of  the  executors  named  in  the  note  intervened  in 
the  suit,  claiming,  as  sole  surviving  executor,  the  ownership  of  the 
note ;  and  the  plaintiff  having  filed  a  statement  that  he  was  not  the 
leiral  representative  of  K.,  the  executor  recovered  judgment.4 

"Where  the  payee  of  a  note  assigns  it  pending  suit,  the  assignee 
may  intervene  and  prosecute  the  suit  to  jugment;  and  it  is  not  ma- 
terial in  such  case  that  the  defendant  died  before  the  assignment.5 

?'  209.  Assignee  of  a  chose  in  action  pendente  lite  may  intervene. 

Generally  speaking,  an  assignee  of  a  chose  in  action, pendente  lite, 
need  not  be  made  a  party;  for  every  person  purchasing  j>m<lt-nte 
lite  is  treated  as  a  purchaser  with  notice,  and  is  subject  to  all  the 

i  Hinzie  v.  Moody,  1  Civ.  App.  26  (208.  W.  Rep.  769). 

•Id  v.  Gautier,  8  T.  74.     See  Van  Bibber  v.  Greer,  12  T.  15. 

>Breinoml  v.  Manley,  31  T.  6. 

4  Batchelor  v.  Douglass,  31  T.  182.  Action  was  brought  against  A.  on  a  note 
executed  by  him  to  B.,  and  which  B.  on  executing  a  note  had  transferred  as  col- 
lateral security,  and  it  was  held  that  B.  could  intervene  in  that  suit  and  set  up 
fraud  in  the  execution  and  delivery  by  him  of  the  note  to  secure  which  the 
note  in  suit  was  transferred.  Ernest  v.  Moline  Plow  Co.,  27  S.  W.  Rep.  734  (8 
Civ.  App.  159). 

6  Converse  v.  Sorley,  39  T.  515.  Where  the  maker  of  a  note  is  garnished,  and 
interveners  come  into  court  and  assert  property  in  the  note,  and  present  it  to 
the  court,  the  presumption  is  that  the  note  came  to  their  hands  before  maturity. 
Bassett  v.  Garthwaite,  22  T.  230. 


236  INTERVENTION   OF   THIKD   PARTIES.  [§  210. 

equities  of  the  persons  under  whom  he  claims  in  privity.1  But  as  a 
party  may  purchase  a  chose  in  action  during  the  pendency  of  a  suit 
in  relation  to  the  same,  he  may  be  made  a  party  thereto  and  have 
judgment  in  his  own  name.2 

In  case  of  bankruptcy,  the  assignee  must  be  made  a  party  in  all 
cases  where  any  interest  in  the  property,  real  or  personal,  vests  in 
him.3  A  transfer  of  an  interest  in  a  policy  of  insurance  pending  a 
suit  on  the  policy  authorizes  an  intervention  by  the  assignee  to  pro- 
tect his  interest.4 

§  210.  The  owner  of  personal  property  may  intervene  in  a  suit  re- 
specting it,  brought  by  another. 

Where  the  maker  of  a  note,  given  for  the  hire  of  negroes,  was 
sued,  a  third  person  was  allowed  to  intervene,  claiming  that  the 
negroes  were  his  property,  and  were  hired  by  the  plaintiff  as  his- 
agent,  although  it  appeared  that  the  ownership  of  the  slaves  was 
in  controversy,  in  a  suit  between  the  plaintiff  and  the  intervener. 
In  this  case,  the  facts  that  the  plaintiff  acted  as  the  agent  of  the 
intervener,  and  that  the  defendant  did  not  know  that  the  plaintiff 
claimed  to  own  the  property,  Avere  considered  to  be  material.51 
When  the  assignee  of  a  bill  of  lading  sued  forwarding  merchants 
for  unlawful  detention  of  the  goods,  the  consignors  were  permitted 
to  intervene  and  defend,  claiming  that  the  goods  were  detained  by 
virtue  of  their  right  of  stoppage  in  transitu.  It  is  true,  the  inter- 
veners  could  not  shield  the  defendants  from  responsibility  for  their 
own  unauthorized  acts;  but  the  rights  of  the  interveners  were  in 
controversy  between  the  original  parties  to  the  suit,  and  the  decis- 
ion might  materially  affect  them,  and  perhaps  subject  them  to  the 
necessity  of  further  litigation.  They  were  the  real  party  in  inter- 
est, adversely  to  the  plaintiff,  and  were  properly  admitted,  as  par- 

i  Story  'sEq.  PL  156. 

*  Taylor  instituted  suit  against  Srnalley  for  a  balance  due  on  account.  After- 
wards the  plaintiff  and  defendant  submitted  all  matters  to  arbitration.  An 
award  was  made  and  returned  into  court,  but  before  judgment  was  entered  up, 
and  upon  the  suggestion  by  the  defendant  of  the  bankruptcy  of  the  plaintiff, 
Swanson  intervened,  setting  up  a  transfer  to  himself  from  the  plaintiff,  made 
more  than  a  year  previous,  of  the  entire  subject-matter  of  the  suit,  and  all 
claim  and  interest  of  the  plaintiff  in  and  to  the  amount  due  from  the  defendant; 
and  judgment  was  rendered  against  the  defendant  and  in  favor  of  Swanson  for 
the  amount  of  the  award.  In  relation  to  the  suggestion  of  bankruptcy,  it  was 
said  that  the  question  was  not  legitimately  before  the  court;  at  least  so  far  as 
the  proof  was  concerned.  Smalley  v.  Taylor,  33  T.  668. 

'Story's  Eq.  PL  158;  Bankrupt  Laws,  sec.  14 

'Liverpool  &  L.  &  G.  Ins.  Co.  v.  Ricker,  31  S.  W.  Rep.  248. 

6  Eccles  v.  Hill,  13  T.  65.  In  a  suit  for  the  trial  of  the  right  of  property,  a  mere 
lien  upon  the  property  in  favor  of  a  third  person,  without  the  right  of  posses- 
sion, and  without  a  showing  that  the  lien  would  be  impaired  by  a  sale  under 
execution,  does  not  give  the  right  to  intervene.  Belt  v.  Raguet,  27  T.  471. 


§211.]  I.vn.i:\  I.N  II"N    »h     ilIIKD    PARTIES.  237 

to  enable  them  m<'tv  effectually  to  assert  and  maintain  their 
right,  and  in  order  that  the  whole  controversy  might  be  settled  in 
one  suit".1  Where  II.  petitioned  the  court  for  mandamus  to  com- 
pel tin-  <•« unity  >urvrvor  to  record  the  field-notes  of  a  survey  made 
for  him,  upon  the  lieadrigbt  certificate  of  one  N.,  there  was  an  ex- 
ception to  the  petition,  which  the  court  sustained,  and  gave  leave  to 
the  plaintiff  to  amend,  and  continued  the  cause.  At  the  next  term, 
tin-  administrator  of  A.  was  permitted  to  intervene,  claiming  the  cer- 
tificate in  right  of  the  estate  of  his  intestate,  and  had  judgment  to 
compel  the  county  surveyor  to  record  the  field-notes.2 

?  211.  Bights  of  purchaser  of  land  pendente  lite. 

In  actions  of  trespass  to  try  title,  the  question  to  be  tried  is  the 
title  at  the  time  of  the  demise  laid,  or  the  commencement  of  the 
action.  If  that  be  good,  the  plaintiff  is  entitled,  as  a  general  rule, 
to  a  recovery.  And  if  he  have  voluntarily  assigned  or  transferred 
his  interest  in  the  meantime,  the  plaintiff  would  still  be  entitled  to 
a  recovery  inuring  to  the  benefit  of  the  vendee.  On  the  other  hand, 
if  he  did  not  prove  a  good  title  at  the  commencement  of  the  action, 
Ins  vendee  would  be  bound  by  judgment  for  the  defendant.  Tho 
litigating  parties  are  exempted  from  taking  any  notice  of  the  title 
so  acquired,  and  such  purchaser  need  not  be  made  a  party  to  the 
suit.3  It  is  held  that  the  fact  that  an  intervener  bought  an  int 
in  t^ie  land  in  controversy  from  one  not  a  party  subsequent  to  the 
filing  of  the  suit  in  no  way  affects  his  right  to  intervene  and  assert 
such  title  as  he  may  have.4  One  who,  pending  a  suit  involving 
property,  purchases  at  a  trust  sale  the  interest  of  one  of  the  parties 
in  that  property,  occupies  a  position  entitling  him  to  intervene  in 
that  suit.5 

1  Chandler  v.  Fulton,  10  T.  2. 
'Wright  v.  Neathery,  14  T.  211. 

*  A  plea  in  the  action  of  trespass  to  try  title  of  an  outstanding  title  in  a  third 
person  is  not  sustained  by  evidence  of  the  conveyance  of  the  property  ex» 

hy  the  plaintiff  during  the  pendency  of  the  suit.  Lee  v.  Salinas,  15  '! 
Pending  an  action  of  trespass  to  try  till**,  the  plaintiff  sold  his  interest  in  the 
land  to  other  parties,  who  thereupon  were  permitted  l>y  the  court  Mow  to  be- 
come plaintiffs  in  the  place  of  the  original  plaintiff.  //•/'/,  that  in  this  the  court 
erred;  the  rights  of  the  parties  were  fixed  at  the  institution  of  the  suit,  and  no 
sale,  pendente  lite,  by  the  original  plaintiff  could  entitle  his  vendees  to  be  in:n!o 
plaintiffs  in  his  stead,  or  exonerate  him  from  the  responsibilities  of  the  suit. 
Att«-r  such  a  sale,  however,  if  the  original  plaintiff  should  recover  judgment,  it 
would  inure  to  the  benefit  of  his  vendees.  Hen  me  v.  Erhard,  38  T.  60. 

The  purchaser  of  land  pendente  lite,  in  answer  to  the  plea  of  defendants  that 
plaintiffs  had  sold  their  interest  in  the  land,  answered.  - -ttin^  forth  the  facts 
and  made  himself  a  party  plaintiff.  Judgment  having  been  rendered  for  the 
defendant  in  the  court  below,  an  appeal  by  the  intervener  was  dismissed  on  the 
ground  that  he  was  an  improper  party  to  the  suit  Clarke  v.  Koehler,  32  T. 
679. 

•  Stanley  v.  Schwalby,  85  T.  348  (19  S.  W.  Rep.  264). 

4  Fleming  v.  Seeligson,  51  T.  524.    In  a  suit  to  foreclose  a  mechanic's  lien  it 


233  INTERVENTION   OF  TBl£D   PARTIES.  [§  212. 

One  who  purchases  land  pending  a  suit  in  which  the  title  to  the 
land,  or  a  lien  upon  it,  is  involved,  does  so  subject  to  the  final  judg- 
ment in  the  cause,  whether  he  be  made  a  party  to  the  suit  or  not. 
But  his  title  is  not  affected  unless  the  suit  terminates  adversely  to 
his  vendor.1  If  dismissed  or  abandoned,  no  subsequent  suit  founded 
upon  the  same  cause  of  action,  much  less  one  seeking  a  different 
remedy  for  different  reasons  against  the  same  land,  can  interfere 
with  the  purchaser's  title,  unless  he  be  made  a  party  thereto.  The 
abandonment  of  one  cause  of  action  and  the  adoption  of  a  new  one, 
bv  amendment,  is,  in  effect,  the  dismissal  of  the  former  suit  and  the 
commencement  of  a  new  one,  and  all  parties  interested,  not  already 
before  the  court,  must  be  served  in  order  to  be  bound  by  the  newly- 
sought  decree.  All  defenses  accruing  down  to  the  date  of  the 
amendment  may  be  pleaded  in  bar  of  the  action.  It  has  been  held 
that  a  plaintiff  cannot  set  up  a  new  equity  so  as  to  affect  a  pur- 
chaser who  bought  previous  to  the  filing  of  the  amendment  in  which 
it  is  asserted,  though  the  prayer  for  relief  be  not  changed.  Much 
less  will  the  amendment  affect  such  a  purchaser  if  the  equity  be 
different  and  contradictory  of  the  original  bill,  and  the  relief  be  of 
a  different  character.2 

§  212.  In  actions  affecting  title  to  property. 

It  is  held  that  the  practice  in  this  state  permits  intervention  in 
suits  for  real  or  personal  property.3  In  a  suit  by  a  contractor,  to- 
foreclose  a  mechanic's  lien,  third  parties,  as  material-men,  claimed 
the  right  to  come  in  by  intervention.  One  of  them  claimed  a  lien, 
but  there  was  neither  allegation  nor  proof  of  the  recording  of  the 
bill  of  particulars;  the  other  showed  a  record,  and  service  on  the 
defendant,  and  the  defendant  had  promised  to  pay  the  claim.  It 
was  held  that  the  claims  of  the  original  plaintiff  and  of  the  inter- 
was  held  that  where  facts  exist  authorizing  intervention  in  a  suit  pending  by  a 
lit  pendens  purchaser,  the  failure  to  intervene  will  not  conclude  the  rights  of 
such  purchaser  when  he  did  not  know  the  necessity  for  such  intervention  and 
the  facts  were  withheld  by  the  parties  alleged  to  have  collusively  agreed  upon 
a  judgment  not  authorized  by  the  facts.  Wolf  v.  Butler,  81  T.  86  (16  S.  W.  Rep. 
794). 

1Wortham  v.  Boyd,  66  T.  401  (1  S.  W.  Rep.  109);  Flanagan  v.  Pearson,  61  T. 
302;  Randall  v.  Snyder,  64  T.  350;  Harle  v.  Langdon,  60  T.  555;  Moore  v.  Moore, 
67  T.  293  (3  S.  W.  Rep.  284);  Evans  v.  Welborn,  74  T.  530  (12  S.  W.  Rep.  230). 

*  Wort-ham  v.  Boyd,  66  T.  401  (1  S.  W.  Rep.  109);  Stone  v.  Connelly,  1  Met.  (Ky.) 
654  A  purchaser  of  a  tract  of  land  by  metes  and  bounds  from  one  party  to  a 
partition  suit,  pending  the  proceeding,  should  not  be  allowed  to  intervene  with- 
out showing  that  he  was  an  innocent  purchaser  without  notice,  or  that  there 
are  oth«r  equities  which  could  only  be  adjusted  by  his  intervention.  Griffin  v. 
Wilson,  39  T.  213. 

»  Pool  v.  Sanford,  52  T.  621,  citing  Field  v.  Gautier,  8  T.  74;  Eccles  v.  Hill,  13 
T.  65:  Burditt  v.  Glasscock,  25  T.  Sup.  45;  Smith  v.  Allen,  28  T.  497:  Smalley  v. 
Taylor,  33  T.  668;  Mussina  v.  Goldthwaite,  34  T.  125;  Whitman  v.  Willis,  51  T.  421. 


§  212.J  I.MKKVKMIo.N    uF    THIRD    PARTIES.  239 

veners  were  so  intimately  connected,  and  so  dependent  the  one 
upon  the  other,  as  to  present  a  proper  case  and  subject-matter  for 
intervention,  so  that  the  respective  rights  of  all  the  parties,  includ- 
ing the  plaintiff  himself,  could  be  adjusted  and  protected.1 

When  the  title  to  real  property  is  directly  involved  in  a  pending- 
suit  —  when  it  is  the  subject-matter  of  the  suit  —  any  one  claiming 
an  interest  in  such  subject-matter,  at  the  time  of  the  commencement 
of  the  action,  which  may  be  affected  by  the  decree,  has  the  right 
to  intervene,  if  demanded  in  a  proper  manner  and  at  a  proper 
time ;  and  the  refusal  to  grant  leave  so  to  do  will  be  corrected  on 
appeal.  But  when  the  title  to  real  property  is  only  indirectly  in- 
volved, where  it  is  not  in  issue,  but  where  the  property  is  simply 
levied  upon  as  the  property  of  the  original  defendant,  then  a  third 
party  who  is  in  possession,  in  order  to  entitle  himself  to  the  right 
to  intervene,  should  allege  such  facts  as  would  authorize  a  court  of 
equity  to  grant  him  a  writ  of  injunction,  upon  the  familiar  doctrine 
that  he  cannot  ask  equitable  relief  when  he  has  an  adequate  rem- 
edy at  law.2  This  rule  is  affirmed  in  other  cases,  and  it  is  held  that 
in  a  suit  to  foreclose  a  vendor's  lien,  one  claiming  an  interest  in  a 
part  of  the  land,  but  whose  title  can  be  in  no  way  affected  by  the 
decree,  has  no  right  to  interfere  in  the  suit.8 

Where  non-resident  creditors  of  a  corporation,  having  its  origin 
and  domicile  in  a  sister  state,  attach  land  in  this  state  belonging  to 
the  corporation,  a  receiver  of  the  property  of  the  corporation,  ap- 
pointed by  a  court  of  the  state  in  which  the  corporation  is  located, 
may  intervene.4 

!Pool  v.  Sanford,  52  T.  621,  citing  PhiL  on  Mech.  Liens,  sec.  205;  Loonie  v. 
Hogan,  5  Seld.  (9  N.  Y.)  440. 

-  Whitman  v.  Willis,  51  T.  421.  It  is  said  in  this  case,  that,  on  authority,  it 
would  seem  that  more  indulgence  should  be  granted  in  favor  of  the  right  of  the 
wife  to  intervene  to  protect  her  interest  in  property,  as  the  homestead,  which 
has  been  levied  upon  as  subject  to  the  debts  of  the  husband;  and  that  this  ex- 
ception is,  perhaps,  based  upon  the  ground  that  there  is  such  legal  unity  be- 
D  husband  and  wife  that  she  may  be  viewed  in  the  light  of  an  original 
defendant—  citing  Baxter  v.  Dear,  24  T.  17,  21;  Stoddart  v.  McMahon,  35  T.  -,'f^; 
Freem.  on  Ex'n.  sees.  438,  439. 

»  Faubion  v.  Rogers,  66  T.  472  (1  S.  W.  Rep.  116).  In  a  suit  to  foreclose  a  mort- 
gage, one  holding  a  deed  of  trust  on  the  property  under  which  he  is  in  posses- 
sion at  the  time  he  intervenes  is  properly  allowed  to  intervene.  JolmMoii  v. 
Killing  Mfg.  Co.,  24  S.  \V.  Rep.  996.  A  vendor  who  retains  title  as  security  for 
unpaid  purchase-money  should  be  allowed  to  become  a  co-defendant  with  his 
vendee  in  a  suit  against  the  latter  for  land.  Galan  v.  Town  of  Uoliad,  ::,'  T. 
776. 

A  husband  conveyed  the  homestead,  the  wife  not  joining  in  the  deed.  The 
wife  died  first,  and  in  a  suit  concerning  the  title  to  the  land  it  was  held  that 
the  administrator  of  the  husband's  estate  had  no  right  to  intervene,  assert  the 
invalidity  of  the  hu>l>and's  deed,  and  claim  the  land  as  subject  to  administra- 
tion. Irion  v.  Mills.  41  T.  810. 

4  Gayoso  Sav.  Inst.  v.  Burrow,  37  T.  88,    See  Graves  v.  Hall,  27  T.  148, 154 


240  INTKRYKNTION    OF   THIHD   PARTIES.  [§§  213-215. 

S  213.  In  trespass  to  try  title,  owner  of  land  may  intervene  in  a  suit 
brought  against  his  tenant. 

When  an  action  of  trespass  to  try  title  is  brought  against  a  tenant 
in  possession,  the  landlord  may  enter  himself  as  the  defendant,  or  he 
muv  he  madr  a  party  on  motion  of  the  tenant,  and  will  be  entitled  to 
make  tin-  same  defense  as  if  the  suit  had  been  originally  commenced 
gainst  him.1  Where  suit  was  brought  on  several  promissory  notes 
signed  by  the  defendant,  and  for  the  recovery  of  a  city  lot  conveyed 
by  defendant  to  plaintiff,  third  parties  were  permitted  to  intervene 
and  claim  the  lot  by  a  conveyance  subsequent  in  date  to  that  under 
which  plaintiff  claimed.2 

An  intervener  in  a  suit  for  land  should  set  out  facts  entitling  him 
to  a  recovery  against  the  original  parties  to  the  suit.3 

§  214.  Bights  of  lienholders. 

la  suits  by  mechanics,  laborers,  etc.,  to  enforce  liens  for  wages 
against  railroads  and  their  equipments,  other  lienholders  may  in- 
tervene and  have  their  rights  determined  and  adjusted  by  the 
court.4 

§  215.  Where  property  is  seized  under  attachment,  execution,  etc. 

In  ordinary  attachment  suits,  third  persons  claiming  an  interest 
only  in  the  property  attached,  and  not  in  the  subject-matter  of  the 
suit,  cannot  intervene  in  the  main  action  for  the  purpose  of  assert- 
ing their  right  to  the  attached  property.  The  proper  course,  as  a 
general  rule,  if  they  desire  to  set  up  their  right  to  the  property,  is 
to  tile  a  claimant's  bond,  or  pursue  the  sheriff  in  an  action  of  tres- 
pass,5 or  sue  the  purchaser  at  the  sheriff's  sale  for  the  recovery  of 
the  property.8  The  right  to  intervene  in  an  attachment  suit  is 

1  R.  S.  5253.    The  regular  and  most  convenient  mode  of  practice  in  making 
the  landlord  a  party  would  be  to  apply,  by  oral  motion,  for  leave  of  the  court  to 
be  made  a  party;  but  this  course  is  not  an  imperative  requirement,  and  the 
failure  to  pursue  it  is  a  formal  rather  than  a  substantial  error.    Caldwell  v. 
Fraim,  32  T.  310. 

2  Phelps  v.  Zuschlag,  34  T.  371. 

'  Del  Rio  Building  &  L.  Ass'n  v.  King,  71  T.  729  (12  S.  W.  Rep.  65;.  In  trespass 
to  try  title  to  a  subdivision  of  a  survey,  the  boundary  of  the  survey  being  in- 
volved, owners  of  another  subdivision  of  the  survey  were  properly  allowed,  on 
the  evidence  set  out  at  length,  to  intervene  to  protect  their  interests.  Butts  v. 
Caffall,  24  S.  W.  Rep.  373.  The  title  set  up  by  an  intervener  to  a  part  of  the  land 
does  not  prevent  the  plaintiff's  recovering  as  against  the  defendant.  Roosevelt 
v.  Davis,  49  T.  463. 

In  an  action  of  trespass  to  try  title,  instituted  by  heirs  against  parties  holding 
adversely  to  the  estate  of  their  ancestors,  a  legatee  entitled  to  a  moneyed  leg- 
acy, and  not  seeking  to  subject  the  land  to  sale,  cannot  intervene  and  recover 
the  land.  Acklin  v.  Paschal,  48  T.  147. 

«R.S.  3313. 

4  Ryan  v.  Goldf rank,  58  T.  356. 

«Jaffray  v.  Meyer,  1  App.  C.  C.,  §  1351;  Rodrigues  v.  Trevino,  54  T.  198;  Gar- 
ner v.  State,  36  T.  693.  In  Stoddart  v.  McMahan,  35  T.  267,  it  was  held  that  the 


V 

§210.]  IM'KUVKNTIoX    OF   THIRD    V.\l:  U  H 

limited  to  those  who  have  an  interest  in  the  subject-matter  of  the 
suit.1 

On  trial  of  tin-  Hirht  of  property  taken  in  execution,  if  third  per- 
sons claiming  prior  liens  on  the  property  be  permitted  to  intervene 
at  all,  thev  should  he  allowed  to  do  so  only  on  making  oath  or  giv- 
ing bond  as  required  for  trials  of  the  right  to  property,  or  for  an 
injunction  against  an  execution.2 

£  216.  Rights  of  attaching  creditors. 

The  right  of  a.  subsequent  attaching  creditor  to  intervene  in  an 
action  in  which  a  prior  attachment  has  been  levied,  and  show  thar 
the  older  attachment  is  based  on  a  fraudulent  demand,  or  one 
which  has  in  fact  no  existence,  for  the  purpose  of  having  his  lien  de- 
clared superior  and  enforcing  payment  out  of  the  attached  property, 
is  fully  recognized ; 3  but  he  cannot  intervene  for  the  purpose  of 
defeating  the  prior  attachment OD  the  ground  of  mere  irregularities 
in  the  proceedings.4  He  may  intervene  in  order  to  have  the  judg- 

wife  of  defendant  in  an  attachment  had  the  right  to  intervene  and  claim  a  part 
of  the  attached  property  as  a  homestead,  and  recover  damages  for  its  >ri/.mv. 

1  Meyberg  v.  Si  -a^all,  51  T.  351.  In  Harrison  v.  Harwood,  31  T.  650,  it  was 
hold  that  where  an  attaching  creditor  had  acquired  a  lien  by  a  levy,  other  cred- 
itors could  not  intervene  on  the  ground  that  the  defendant  was  insolvent,  and 
obtain  a  pro  rata  division  with  the  attaching  creditor. 

In  Burlacher  v.  \Vatson.38  T.  62,  one  claiming  title  to  personal  property  seized 
under  attachment  was  permitted  to  intervene  and  recover  the  property  as 
against  the  plaintiff  and  another,  who  had  intervened,  claiming  a  lien  on  the 
property. 

Attachment  being  levied  upon  community  property  in  which  the  heirs  of  the 
deceased  mother  had  an  interest,  to  protect  which  interest  they  intervened,  it 
was  held  that  interveners  had  no  such  equitable  right  as  entitled  them  to  int'-r- 
vene,  and  that  th<?re  was  no  error  in  sustaining  exceptions  to  the  plea.  Hinzie 
v.  Moody,  1  Civ.  A  pp.  26  (20  S.  W.  Rep.  769). 

«  Belt  v.  Ragut-t.  27  T.  471.  In  Cravens  v.  Wilson,  4S  T.  324,  it  was  held  that 
when  a  sheriff  is  guilty  of  such  irregularities,  in  selling  land  under  execution, 
as  to  prevent  a  fair  sale  of  it,  the  judgment  creditor  may  either  proceed,  by  mo- 
tion, in  the  court  from  which  the  execution  issued,  to  set  aside  the  sal. ,  K'ving 
notice  to  the  purchaser,  or  he  may  intervene  in  a  suit  between  the  purchaser 
and  a  third  party  which  involves  the  title. 

In  a  suit  upon  a  note  and  mortgage,  in  which  a  sequestration  had  been  sued 
nut  and  levj.-.l  upon  a  stock  of  goods,  a  third  party  intervened,  and  sought  to 
have  a  portion  of  the  proceeds  of  the  sequestered  property  applied  to  a  former 
judgment  in  his  favor.  The  question,  whether  the  intervention  was  proper,  was 
left  undecided.  Peiser  v.  Peticolas,  48  T.  483.  Personal  property  having  been 
sequestered,  the  plaintiff  replevied.  Subsequently  another  party  claiming  the 
property  im«-r\ .  n.-  1  in  the  suit,  claiming  the  property  in  controversy  between 
the  original  parties  and  it  was  held  that  such  claimant  could  intervene  in  the 
suit  without  tiling  oath  or  claim  bond  as  under  the  statute  for  trial  of  right  to 
property.  Irvin  v.  Ellis,  76  T.  164  (13  a  W.  Rep.  22). 

*  Good  bar  v.  Bank,  78  T.  461  (14  S.  W.  Rep.  851);  Peters  Furniture  Co.  v.  Dickey, 
2  U.  C.  237. 

4  Nenney  v.  Sch Inter.  62  T.  327.  A  junior  attaching  creditor  may  intervene  in 
the  suit  of  a  first  ati.u  -hing  creditor  for  the  purpose  of  testing  the  validity  of  the 
16 


INTERVENTION    OF   THIRD   PARTIES.  [§216. 

ment  of  a  previous  attaching  creditor  set  aside  on  the  ground  of 
fraud,  and  this  without  being  required  to  execute  bond;  a  failure  on 
the  part  of  the  intervener  to  allege  the  insolvency  of  the  debtor 
would  be  fatal  to  his  petition.1  A  fraudulent  diversion  of  a  debt- 
or's property  may  be  as  effectively  accomplished  by  a  collusive  suit 
as  by  a  direct  transfer;  and,  to  prevent  the  illegal  result  of  such  a 
suit  between  an  attaching  creditor  and  the  debtor,  a  junior  attach- 
ing creditor  mav  intervene  in  the  case  and  protect  his  interest  in  the 
attached  property  by  showing  that  the  plaintiff's  demand  is  ficti- 
tious.2 

debt  upon  which  it  is  founded,  but  not  for  the  purpose  of  quashing  the  writ 
for  informalities.  Such  junior  attaching  creditor  may  intervene  for  the  pur- 
pose of  showing  t'jat  the  older  attachment  was  fraudulent.  Bateman  v.  Rarn- 
sey,  74  T.  589  (12  S.  W.  Rep.  235). 

A  creditor  holding  a  junior  attachment  lien  adjudged  him  in  the  county  court 
for  a  sum  less  than  $500  may  intervene  in  an  attachment  suit  against  the  same 
defendant  and  the  same  property  in  the  district  court,  for  the  purpose  of  attack- 
ing and  setting  aside  the  proceedings  in  the  district  court,  and  to  subject  the 
property  to  the  claim  of  such  intervener.  Peticolas  v.  Carpenter,  53  T.  23;  Hei- 
denheimer  v.  Johnson,  76  T.  200  (13  S.  W.  Rep.  46). 

1  Grab3nheimer  v.  Rindskoff,  64  T.  49;  Peticolas  v.  Carpenter,  53  T.  23. 

2  Johnson  v.  Heidenheimer,  65  T.  263.    Suit  was  instituted  against  a  United 
States  marshal  to  recover  the  value  of  property  seized  under  attachment.   Plaint- 
iffs in  the  attachment  proceedings  sought  to  intervene  upon  the  grounds  that 
they  had  given  the  marshal  a  bond  of  indemnity,  and  that  he  had  desired  them 
to  defend  the  suit  and  given  notice  of  his  intention  to  look  to  them  for  indem- 
nity against  any  judgment  rendered  against  him.    Though  such  a  course,  when 
not  objected  to,  has  frequently  been  allowed,  plaintiffs  in  the  attachment  pro- 
ceedings had  no  legal  right  to  intervene.    No  right  of  theirs  was  imperiled  by  a 
refusal  to  allow  them  to  intervene.    McKee  v  Coffin,  66  T.  304  (1  S.  W.  Rep.  276). 

Suit  by  A.  P.,  joined  by  her  husband,  against  E.  for  a  half-interest  in  certain 
personal  property  converted  by  E.  The  defendant  pleaded  that  the  property 
was  claimed  by  C.  &  Co.,  and  asked  that  they  be  impleaded.  C.  &  Co.  inter- 
vened. They  had  seized  the  property  under  attachment  On  trial  the  plaintiff 
recovered  against  the  defendant,  and  the  judgment  was  against  intervener?. 
The  interveners  appealed,  giving  only  bond  for  costs.  Pending  the  appeal  plaint- 
iff sued  out  execution  against  the  defendant,  which  was  satisfied.  On  the  ap- 
peal the  judgment  against  C.  &  Co.  was  reversed  and  the  property  declared 
subject  to  their  claim.  The  defendant  then  pleaded  his  payment  of  the  judg- 
ment. The  plaintiff,  admitting  payment,  dismissed  her  suit  as  to  the  defendant. 
Trial  was  had.  resulting  in  judgment  against  the  interveners,  who  appealed,  and 
it  was  held:  1.  The  payment  under  execution  discharged  the  defendant  as  against 
interveners  as  well  as  plaintiff.  2.  Had  interveners  desired  protection  without 
a  superseded*  bond,  they  could  have  been  aided  by  an  injunction,  or  by  an  order 
requiring  the  money  to  be  deposited  in  court.  3.  But  the  interveners  having 
requested  such  equitable  relief  as  they  might  be  entitled  to,  and  having  shown 
that  the  property  was  subject  to  their  attachment  lien,  they  were  entitled  to 
judgment  against  the  plaintiff  for  the  sum  and  interest  she  recovered  from  the 
defendant.  4.  Upon  the  facts  judgment  below  was  reversed  and  rendered  for 
interveners  against  the  plaintiff  and  against  the  separate  property  of  Mrs.  A.  P. 
Claflin  v.  Pfeifer,  84  T.  23  (19  S.  W.  Rep.  297). 


CHAPTER  X. 


OF  THE  VENUE  OF  ACTIONS. 


217.  General  principles. 

218.  Domicile;  residence. 

•    Yrnue  prescribed  by  particular 
law. 

>.  Power    of    the    legislature    to 

change  the  law. 
221.  Suits  by  married  women. 
Transient  persons. 

:.  Residence  without  the  state,  or 
unknown. 

;.  Residence  of  defendants  in  dif- 
ferent counties. 

">.  Contract  to  be  performed  in  a 

particular  county. 
226.  Validity  of  contract  as  to  venue. 

7.  Actions  against  executors,  ad- 
ministrators or  guardians. 

228.  Fraud  or  official  defalcation. 

229.  In  cases  of  crime,  offense,  or  tres- 

[IMft 

230.  Wrongful  attachment  or  seques- 

tration. 

231.  Suits  for  recovery  of  personal 

property. 

.'.  Concerning  inheritances. 
233.  Foreclosure  of  mortgage  or  lien. 
234  Suits  for  partition. 
235.  Suits  concerning  land. 


§  236.  Breach  of  warranty  of  title. 

237.  Suits  for  divorce. 

238.  Enjoining  judgments,  etc. 

239.  Judgments,  actions  on,  and  to 

»evive  or  vacate. 

240.  Revising  proceedings  in  probate. 

241.  Suit  against  a  county. 

242.  Mandamus  against  heads  of  de- 

partments. 

243.  Forfeiture  of  charters. 

244.  Suits  to  forfeit  railroad  lands. 

24.1.  Suits  against  private  corpora- 
tions, including  railroad  com- 
panies. 

246.  Suits  by  mechanics,  etc.,  against 

railroad  companies. 

247.  Suits  against   foreign   corpora- 

tions. 

248.  Suits    against    insurance    com- 

panies. 

249.  When  a  river  or  road  is  a  county 

boundary. 

250.  Contested  elections. 

251.  Actions  against  and  to  appoint 

receivers. 

252.  Plea  of  personal  privilege  may 

be  waived;  how  tried. 


211.  General  principles. 

Subject  to  certain  exceptions,  hereinafter  stated,  an  inhabitant  of 
the  state  must  be  sued  in  the  county  in  which  he  has  his  domicile.1 
I'ntil  a  new  county  is  organized  in  accordance  with  law,  the  terri- 
tory thereof  remains  in  all  respects  subject  to  the  county  from 
which  the  same  has  been  taken.2  "Where  a  new  county  had  Urn 
created  by  the  legislature,  and  had  been  organ i/ed  iwith  the  excep- 
tion that  no  district  court  clerk  had  Urn  fleeted i.  but  the  county 
had  not  been  attached  to  any  judicial  district,  the  inhabitants  were 


El  1194;  Farris  v.  Seisfield,  1  App.  C.  C.,  §  351;  Kinney  v.  McCleod,  9  T 

. 


244  VENUE   OF   ACTIONS.  [§  217. 

hold  liable  to  be  sued  in  the  county  to  which  they  belonged  before 
the  creation  of  the  new  county.1 

The  word  domicile  in  the  statute  means  residence?  The  object 
of  the  law  is  to  prevent  citizens  from  being  drawn  from  home  to 
distant  counties  to  defend  suits  brought  against  them.  It  is  there- 
fore to  be  liberally  construed  whenever  it  is  necessary  to  carry  out 
this  object ;  but  whenever  it  is  invoked  for  any  other  purpose,  as 
where  the  defendant  claims  the  right  to  be  sued  in  a  county  other 
than  that  of  his  domicile,  it  is  entitled  to  no  construction  other  than 
its  plain  and  literal  meaning.3  Where  suit  is  brought  in  one  county, 
and  defendant  is  alleged  to  reside  in  another,  although  it  seems 
proper,  and  perhaps  necessary,  to  allege  facts  which  show  that  de- 
fendant is  not  entitled  to  be  sued  in  the  county  of  his  residence,  yet 
if  not  successfully  met  by  plea  in  abatement,  it  is  not  necessary  to 
prove  such  facts  under  the  general  issue.4 

It  is  the  general  rule  that  every  inhabitant  of  this  state  must  be 
sued  in  the  county  of  his  domicile ;  and  if  from  a  petition  it  appears 
that  a  suit  is  brought  in  a  county  other  than  that  of  the  defendant's 
domicile,  objection  may  be  made  to  the  venue  of  the  suit  unless  the 
petition  states  facts  which  bring  it  within  one  of  the  exceptions  to 
the  general  rule.6  Some  of  the  exceptions  are  peremptory,  requir- 
ing suit  to  be  brought  in  a  particular  county ;  others  provide  that 
it  may  be  brought  in  a  county  other  than  the  one  in  which  the  de- 
fendant resides.  The  latter  are  for  the  benefit  of  the  plaintiff,  and 
confer  on  him  the  right  to  choose  between  different  counties  in 
bringing  his  suit,  in  the  exercise  of  which  the  courts  will  not  control 
him.  If  a  fraud  upon  the  jurisdiction  is  attempted  by  the  plaintiff, 
it  may  be  made  available  by  plea  setting  up  that  fact.6 

The  right  to  maintain  a  suit  in  another  county  than  that  in  which 
the  statute  fixes  the  venue  must  depend  upon  the  existence  of  the 
facts  which  constitute  the  exception  to  the  statute,  and  not  upon 
the  mere  allegation  of  such  facts.  That  is,  where  jurisdiction  of 
the  person  of  a  defendant  is  claimed  under  some  exception  to  the 
general  rule,  and  the  defendant  pleads  his  privilege  of  being  sued 
in  the  county  of  his  domicile,  to  -defeat  this  plea  and  deprive  him 
of  the  right  claimed  the  facts  relied  upon  must  be  proved.  The 
rule  in  such  case  differs  from  the  rule  announced  in  cases  in  which 
jurisdiction  depends  upon  the  amount  claimed.  In  such  cases  it  is 

1  Runge  v.  Wyatt,  25  T.  Sup.  291. 

2  Brown  v.  Boulclen,  18  T.  431.    And  see  State  v.  Skidmore,  5  T.  469;  Russell  v. 
Randolph,  11  T.  460,  465;  Ex  parte  Blumer,  27  T.  734. 

'Finch  v.  Edmondson,  9  T.  504 

4  Wilson  v.  Adams,  15  T.  323. 

» Thompson  v.  Locke,  66  T.  383  (1  S.  W.  Rep.  112). 

6  Carro  v.  Carro,  60  T.  395. 


'.  7.]  NTE    OF    ACTIONS. 

held  that  jurisdiction  depends  upon  the  amount  alleged  in  the  peti- 
tion.1 

A-  t«>  th<>  riirht  of  a  plaintiff  to  set  up  a  supplemental  cause  of 
action  by  amendment,  it  is  held  that  whore  suit  is  brought  in  the 
county  win «iv  jurisdiction  rightfully  belongs  under  the  case  stated 
in  plaintiff's  original  petition,  the  court  will  retain  its  jurisdiction 
ovi-r  tin.-  case  in  respect  to  any  supplemental  cause  of  action  subse- 
quently engrafted  on  the  original  cause  of  action  by  an  amended 
petition,  unless  such  amendment  set  up  such  additional  cause  of  ac- 
tion fraudulently  to  deprive  the  defendant  of  his  personal  privilege 
to  litigate  it  in  the  county  of  his  residence.  To  hold  otherwise  would 
be  to  attach  a  condition  to  the  right  to  amend  the  cause  of  action  as 
originally  declared  on,  incompatible  with  the  spirit  of  the  la\v' regu- 
lating amendments,  and  which  the  statute  has  not  prescribed.  If  a 
party  has  been  properly  sued  in  a  county  other  than  that  of  his 
domicile,  the  subsequent  proceedings  in  respect  to  the  matters  that 
may  be  litigated  in  it  under  amendments  varying  the  character  of 
the  issues  to  be  tried,  and  what  subject-matters  may  be  added  by 
way  of  amendment  for  determination  in  that  suit,  are  to  be  deter- 
mined not  on  a  question  of  privilege  as  to  where  such  matters  may 
be  tried,  but  according  to  the  rules  of  law  which  determine  what 
may  be  added  by  way  of  amendment  to  the  subject  of  litigation  as 
it  was  presented  in  the  original  petition.  The  general  policy  of  the 
law  is  to  avoid  a  multiplicity  of  suits;  and  it  favors  the  adjustment 
of  the  rights  of  the  parties  in  one  suit  if  it  can  be  done  consistently 
with  those  rules  of  law,  which  for  their  own  reasons  fix  a  limit  and 
a  boundary  to  the  liberal  rule  which  thus  encourages  the  settlement 
of  controversies  in  one  suit  where  it  can  be  done,  so  as  not  to  drive 
a  party  to  another  suit  and  before  another  forum  to  adjust  that 
which  may  be  settled  in  that  jurisdiction  before  which  the  parties 
already  are.  The  right  given  by  the  statute  to  be  sued  in  certain 
>  s  of  actions  in  the  county  of  his  residence  is  to  be  construed 
relatively  to  and  with  other  statutes  and  rules  of  pleading  and  pro- 
cedure, and  when  the  suit  is  brought  in  a  proper  county,  although 
it  be  not  in  that  of  the  defendant's  residence,in  the  absence  of  fraud, 
ordinarily,  the  suit  will  proceed  subject  to  the  rules  of  law  common 
to  all  other  cases,  unaffected  by  a  question  of  venue.* 

Where  a  defendant,  by  plea,  asks  to  have  a  third  party  brought 
in,  on  the  ground  that  such  third  party  has  undertaken  to  guaranty 
him  entire  immunity  from  any  judgment  that  might  be  reco\ 
against  him,  such  plea  is  a  suit  against  such  third  party,  and  ho 
has  a  right  to  insist  upon  his  privilege  of  being  sued  in  the  county 
of  his  residence.8  It  is  not  decided  that  in  no  case  could  a  third 

i  Hilliar.1  v.  WiU.n.  76  T.  180  (13  S.  W.  Rep 

•i.lall  v.  Hjii-kwi.rth.  06  T.  499  (18  a  W.  Rep.  104), 
"Blum  v.  Root,  2  A  pp.  C.  C.,  §  98;  Holloway  v.  Blum,  60  T.  623. 


•_'}•'•  VENUE   OF   ACTIONS.  [§218. 

purt\r  be  brought  in  on  the  application  of  the  defendant.  On  the 
contrary  the  cases  are  numerous  where  it  was  allowed.  These 
cases  are  examined  and  distinguished.1 

A  plaintiff  sued  for  damages  caused  to  his  land  and  the  improve- 
ments thereon,  situate  on  the  south  bank  of  the  Kio  Grande  river 
in  Mexico,  by  obstructions  placed  in  the  bed  of  said  river  by  de- 
fendant, on  the  Texas  side  thereof,  in  the  county  of  Cameron,  in 
\\ -h  ifh  county  the  defendant  resided  and  the  suit  was  brought.  On 
the  question  of  jurisdiction  it  was  held  that:  (1)  The  technical  rules 
of  the  common  law  do  not  determine  the  venue  of  a  cause  in  Texas. 
(2)  If  the  state  failed  to  give  to  one  of  its  citizens  a  remedy  against 
others  for  such  an  injury  as  the  one  complained  of,  it  would  fail  to 
observe  the  constitutional  pledge  promising  a  remedy  by  due  course 
of  law  for  injury  done  to  lands,  person  or  reputation,  as  plainly  as 
if  it  refused  a  remedy  for  an  injury  inflicted  in  a  foreign  jurisdic- 
tion to  one's  goods  or  person.  (3)  Article  1194  of  the  Revised  Stat- 
utes subjects  every  citizen  to  be  sued  in  the  county  of  his  domicile, 
subject  to  certain  exceptions  of  which  this  is  not  one.  That  article 
annuls  the  technical  rule  of  the  common  law  regarding  transitory 
and  local  actions.  (4)  The  fourteenth  exception  to  article  1194 
(that  in  relation  to  land)  has  no  application  in  this  case,  and  the 
action  was  maintainable  in  Cameron  county,  as  the  county  of  de- 
fendant's residence,  not  only  under  the  general  provisions  of  that 
article,  but  under  the  ninth  subdivision,  in  relation  to  crime,  offense 
or  trespass.2 

§  218.  Domicile;  residence. 

The  statute  uses  indiscriminately  the  words  domicile  and  resi- 
dence,—  the  county  in  which  the  defendant  has  his  residence,  in 
which  he  resides ;  and  it  is  held  that  the  same  thing  is  meant  by 
the  use  of  the  two  words.3  It  is  said  there  are  few  subjects  pre- 
sented to  the  courts  for  their  decision  which  are  surrounded  with  so 

1  Legg  v.  McNeil,  2  T.  431;  Garrett  v.  Gaines,  6  T.  446:  Cooper  v.  Singleton,  19 
T.  267;  Iglehart  v.  Moore,  21  T.  504:  Bailey  v.  Trammell,  27  T.  325;  Demaret  v. 
Bennett,  29  T.  270;  Denison  v.  League,  16  T.  408;  Williams  v.  Wright,  20  T.  502; 
Eccles  v.  Hill,  13  T.  66;  Peters  v.   Clements,  46  T.  123;  Estell  v.  Cole,  52  T.  178. 
An  account  in  favor  of  the  Rockwall  Farmers'  Alliance,  domiciled  in  Rockwall 
county,  against  H.  Jones  and  T.  J.  Wood,  Jr.,  neither  of  whom  resided  in  said 
county,  was  transferred  to  appellee,  who  instituted  suit  thereon  in  Rockwall 
county  against  Jones  and  Wood  and  the  Rockwall  County  Alliance,  aHeging 
that  the  former  were  partners  and  that  the  latter  had  guarantied  the  account. 
The  transfer  of  the  account  being  simulated,  and  intended  solely  for  jurisdic- 
tional  purposes,  it  was  a  fraud  upon  the  jurisdiction  of  the  court,  and  the  plea 
of  Jones  and  Wood  claiming  their  privilege  to  be  sued  in  the  county  of  their 
residence  should  have  been  sustained  and  the  cause  dismissed  as  to  them. 
Jones  v.  Austin,  6  Civ.  App.  505  (26  S.  W.  Rep.  144). 

2  Armendiaz  v.  Stillman.  54  T.  623. 
'Brown  v.  Bouldin,  18  T.  431. 


IS.]  SUE    OF   ACTI"  247 

many  practical  difficulties  as  questions  of  domicile.     The  residence 
is  often  of  an  equivocal  nature;  the  intention  extremely  obscure, 
and  has  to  be  gathered  from  acts  and  declarations  oftentimes  con- 
flicting and  contradictory.    The  word  <t,,i,t;,-'tf.e  is  adopted  from  the 
civil  law,  and  tin-  Roman  codes  defined  it  as  follows:  "In  whatever 
an  individual  lias  set  up  his  household  gods  and  made  the  chief 
>f  his  affairs  and  interests;  from  which,  without  some  special 
ition,  he  lias  no  intention  of  departing;  from  which  when  he 
has  depart fd  he  is  considered  to  be  from  home;  and  to  which,  when 
he  has  returned,  he  is  considered  to  have  returned  home.     In  this 
there  is  no  doubt  whatever  he  has  his  domicile."  *    Residence 
at  a  place,  no  matter  for  how  short  a  time,  with  the  present  inten- 
tion, either  openly  declared  or  secretly  entertained,  of  remaining 
there  indefinitely,  constitutes  domicile,  although  the  person  may 
have  a  floating  intention  of  going  elsewhere  at  some  undefined 
future  time.2 

It  is  held  in  this  state  that  a  person  being  at  a  place  is  pi 
facie  evidence  of  his  being  domiciled  there,  and  it  lies  upon  him  to 
rebut  the  presumption  :  declarations  of  a  person's  intention  an-  ad- 
missible on  the  question,  and  are  to  be  credited  when  not  unreason- 
able in  themselves,  not  inconsistent  with  other  facts,  and  not  under 
circumstances  creating  suspicion  of  insincerity.1 

A  domicile  once  acquired  is  not  lost  or  changed  until  a  new  one 
has  b.-en  actually  acquired.4  The  burden  of  proving  a  change  is 
on  the  party  asserting  it.5 

Every  person  is  presumed  to  have  a  domicile  somewhere,  and 
can  have  but  one  at  any  given  time.6  He  cannot  be  a  resident  of 
two  states  at  the  same  time.7  When  a  person  has  two  residences, 
leaving  the  question  of  domicile  in  doubt,  he  may  select  and  treat 
cither  as  his  domicile.* 

The  domicile  of  the  husband  and  father  determines  that  of  the 

» Phillmore  on  Domicile,  11;  White  v.  Brown,  1  Wall.  Jr.  217.  14  Myer's  Fed. 

2 Harris  v.  Firth.  4  Cr.  C.  C.  710:  Ewing  v.  Blight,  3  Wall.  Jr.  134;  Ex  part- 

ii.  :•  I  till.  885;  The  Venus,  8  Cranch,  253;  Ennis  v.  Smith.   14  How. 
John-. n  \.  Tu.-nty-one  Bales  of  Merchandise,  2  Paine,  601,  14  Myer's  Fed.  Dec,, 
j.|..  ".18.  519.     • 

>Ex  parte  Blum.  r.  ,'T  T.  734. 

4  Mclntyn-  v.  ( -a],]..  11.  4  T.  is?;  Ex  parte  Blumer,  27  T.  734;  Cross  v.  Evarts,  28 

,ite  v.  Hrown.  1  Wall.  Jr.  217;  Burnharn  v.  Ranp  ly.  1  W.HMlk  &  Minot. 
7,  14  My.-r's  1Y<1.  I)..-.,  pp.506,  513:  Knnis  v.  Smith.  14  How.  400;  Mitchell  v. 
Unit-l  states.  -Jl  Wall.  350;  Desman-  r.  I'mt«-.l  States,  3  Otto,  605. 

•Cross  v.  l.\  Desmare  v.  United  States,  8  Otto,  605. 

•Brent  v.  Arrntk-M.  4  Cran.-h.  <  \  ( '..  <  .T79. 

8Burnham  v.  Rangely,  1  Woodb.  &  Minot,  7,  14  Myer's  Fed.  Dec,,  p.  5ia 


248  VENUE  OF  ACTIONS.  [§  219. 

wife  and  minor  children.1  An  infant  cannot  change  his  domicile,2 
Though  it  seems  that  he  may  if  he  be  emancipated.3  It  is  said  that 
the  wife  may  acquire  a  domicile  apart  from  that  of  her  husband 
whenever  it  is  necessary  or  proper  that  she  should  do  so.  The 
right  springs  from  the  necessity  of  its  exercise,  and  continues  as 
long  as  the  necessity  exists.4  Where  she  is  divorced  a  mensa  et 
lli',,-n  she  may  acquire  a  new  domicile,5  for  the  purpose  of  suing  her 
husband  in  a  federal  court.6 

The  question  of  domicile  is  a  mixed  question  of  law  and  fact. 
The  court  instructs  the  jury  what  constitutes  a  domicile,  and  the 
jury  are  to  apply  those  principles  to  the  facts  as  found  by  them. 
The  court  may  properly  instruct  them  that  if  they  find  certain  evi- 
dence to  be  true,  then  there  was  a  change  of  domicile.7 

?  219.  Venue  prescribed  by  particular  law. 

Whenever  in  any  law  authorizing  or  regulating  any  particular 
character  of  action  the  venue  is  expressly  prescribed,  the  suit  must 
be  commenced  in  the  county  to  which  jurisdiction  may  be  so  ex- 
pressly given.8  Actions  for  damages  against  a  common  carrier  for 
failure  to  feed  and  water  live-stock  may  be  brought  in  any  court 
having  jurisdiction  in  any  county  where  the  wrong  is  done  or  where 
the  carrier  resides.9  So,  also,  as  to  actions  for  failure  to  execute 
and  deliver  a  bill  of  lading  or  to  carry  goods  when  offered.10 

A  petition  by  a  minor  to  remove  his  disabilities  as  a  minor  must 
be  presented  to  the  district  court  of  the  county  where  the  minor 
resides.11 

County  and  district  officers  are  removed  from  office  by  petition 
tiled  in  the  district  court  of  the  county  where  the  officer  resides.1-' 

A  mayor  or  an  alderman  of  a  town  or  city  is  tried  and  removed 
from  office  by  the  common  council  of  such  town  or  city  —  by  the 

'  Russell  v.  Randolph,  11  T.  460;  Lacy  v.  Clements,  36  T.  001 ;  Hardy  v.  De  Leon, 
5  T.  211;  Franks  v.  Hancock,  1  U.  C.  554;  Prentiss  v.  Barton,  1  Marsh.  389; 
Levy'a  Case,  Election  Cases,  41;  Powers  v.  Mortee,  4  Am.  Law  Reg.  427;  Oglesby 
v.  Sillom,  9  Fed.  R  860,  14  Myer's  Fed.  Dec.,  p.  522. 

"  Franks  v.  Hancock,  1  U.  C.  554;  Trammell  v.  Trammell,  20  T.  406. 

8  Woolridge  v.  McKenna,  8  Fed,  R.  650,  14  Myer's  Fed,  Dec.,  p.  650. 

«Cheever  v.  Wilson,  9  Wall.  108. 

5  Bennett  v.  Bennett,  Deady,  299. 

6  Barber  v.  Barber,  21  How.  582,  14  Myer's  Fed.  Dec.,  p.  523. 

7  Pennsylvania  v.  Ra venal,  21  How.  103,  14  Myer's  Fed.  Dec.,  p.  516. 
«RS.  1194,  exception  27. 

•  R  S.  320. 

>°  R.  S.  321,  322. 

»'  R  S.  34'.w. 

12  R  S.  3.")42.  The  proceedings  against  a  district  attorney  may  be  had  in  the 
county  of  his  residence,  or  in  the  county  in  which  the  alleged  cause  of  removal 
occurred,  if  in  a  county  of  his  judicial  district.  R  S.  3554. 


!'.».]  YKNU:  OF  ACTIO  240 

mayor  and  aldermen  in  case  of  an  alderman,  and  by  a  majority  of 
the  aldermen  when  the  mayor  is  tried.1 

I'r-x ••  ••  •<linL:-s  by  quo  warranto  against  persons  illegally  claiming 
or  holding  any  state  office  or  appointment  as  contradistinguished 
from  a  county  or  district  office  must  be  brought  in  the  district 
court  of  Travis  county.3 

An  application  to  supply  a  lost  deed  or  other  recorded  instrument 
or  judgment,  etc.,  may  be  made  to  the  district  court  of  the  county 
where  the  loss  or  destruction  occurred.3 

A  petition  to  escheat  property  is  filed  by  the  district  or  county 
attorney  in  the  district  court  of  the  county  in  which  such  property 
or  any  part  thereof  lies.4 

In  case  of  a  breach  of  the  obligation  on  the  part  of  the  person  to 
whom  a  minor  has  been  apprenticed,  the  minor,  or  the  county  judge, 
or  any  person  for  the  use  of  the  minor,  may  sue  upon  such  obliga- 
tion in  any  court  of  the  county  where  such  obligation,  or  certified 
copy  thereof,  has  been  filed  and  recorded,  having  jurisdiction  of  the 
amount  claimed.4 

An  application  by  any  person  for  a  change  of  name  must  be  made 
to  the  district  court  of  the  county  of  his  residence.* 

An  attorney  failing  to  pay  over  money  collected  may  be  pro- 
ceeded against  by  motion  before  the  district  court  of  the  county  in 
which  he  usually  resides,  or  in  which  he  resided  when  he  coll- 
or  received  the  money.7 

An  officer  failing  to  pay  over  money  collected,  or  failing  or  re- 
fusing to  levy  upon  or  sell  property  subject  to  execution,  or  neg- 
lecting or  refusing  to  return  an  execution,  or  making  a  false  return, 
may  be  proceeded  against  by  motion  in  the  court  from  which  the 
execution  issued.8 

Actions  against  railroad  companies  for  damans  sustained  by  a 
violation  of  the  statute  creating  a  railroad  commission  are  brought 
in  any  county  into  or  through  which  the  road  may  run;9  actions 
by  the  state  to  recover  a  penalty  under  said  act  are  brought  in  the 
proper  court  of  Travis  county,  or  in  any  county  to  or  through 
which  the  road  may  run.10 

i  R  8.  85C8-3570. 

'  R  a  4349. 

JR  8.  45W5.  The  statute  does  not  apply  to  lost  originals.  Suit  to  supply  :\  1. -r 
po\v(-r  of  attorney  under  which  land  was  conveyed  must  be  brought  in  tin- 
Bounty  of  d.-fi-iidiint's  residence.  Douglas  v.  Baker,  79  T.  499  (15  S.  W.  Rt-p.  801). 

•  R  S.  l  - 
'R&44. 

•  RS.  :*::. 

1  R  S.  •.'••,;  i. 

8K.  ::»7;  St.  Clair  v.  Hotchkisa,  28  T.  474 

•R  8.  4575. 

»°RS,  4577. 


VENUE   OF   ACTIOXS.  [§§  220-222. 

Aii  action  to  forfeit  the  charter  of  a  corporation  for  the  violation 
of  the  statute  against  trusts  may  be  brought  in  Travis  county,  or 
at  the  countv  seat  of  any  county  in  the  state  where  the  corporation 
exists,  does  business,  or  may  have  a  domicile.1 

S  220.  Power  of  the  legislature  to  change  the  law. 

Remedies  are  subject  to  legislative  control;  hence  an  act  which 
gave  jurisdiction  to  the  district  court  of  Travis  county,  before  a 
cause  of  action  had  accrued,  when  that  court  could  not  have  exer- 
cised jurisdiction  under  any  general  law,  on  account  of  the  resi- 
dence of  the  defendant  and  the  subject-matter  of  the  controversy, 
was  not  violative  of  the  constitution.  Nor  would  the  act  have  vio- 
lated the  constitution  had  it  been  passed  after  the  accrual  of  the 
cause  of  action.2  Since  the  venue  of  a  suit  affects  only  the  remedy, 
it  is  in  the  power  of  the  legislature  to  amend  the  laws  in  relation 
thereto,  and  to  make  the  amendment  applicable  to  causes  of  ac- 
tion that  may  have  accrued  before  the  passage  of  the  act.  It  is 
suggested,  also,  that  it  might  have  the  power  to  so  change  the  law 
as  to  confer  local  jurisdiction  of  a  suit  already  pending  upon  the 
court  in  which  it  was  instituted,  although  such  court  did  not  have 
jurisdiction  at  the  time  the  action  was  brought.  This  point  is  not 
decided,  but  it  is  said  that,  admitting  the  power  of  the  legislature 
in  such  a  case,  the  intention  would  have  to  be  clear  before  the  courts 
would  give  the  statute  such  retroactive  effect.3  In  H.  &  T.  C.  Ry. 
Co.  v.  Graves,  50  T.  181,  it  was  held  that  the  ruling  on  a  plea  to 
the  jurisdiction  ought  to  have  been  according  to  the  law  as  it  stood 
at  the  date  of  plaintiff's  last  amendment,  though  the  law  was 
amended  after  the  suit  was  instituted. 

£221.  Suits  by  married  women. 

Where  the  defendant  is  a  married  woman  she  may  be  sued  in 
the  county  in  which  her  husband  has  his  domicile.4 

£222.  Transient  persons. 

Where  the  defendant  is  a  transient  person  he  may  be  sued  in  any 
county  in  which  he  may  be  found.5  A  transient  person  is  one  who 
has  no  fixed  residence  within  the  state ;  and  as  every  person  in  legal 

1 R.  S.  5315. 

'•'-Ward  v.  Hubbard,  62  T.  559,  citing  McMillan  v.  Sprague,  4  How.  (Miss.)  647. 

3  Baines  v.  Jamison,  86  T.  118  (23  S.  W.  Rep.  639).     It  is  held  that  exception  8 
of  article  1194  of  the  Revised  Statutes  (Acts  1889,  p.  48),  prescribing  "that  any 
suit  for  damages  growing  out  of  the  suing  out  of  any  writ  of  attachment  or 
sequestration,  or  for  the  levy  of  any  such  writ,  may  be  brought  in  any  county 
from  which  such  writ  was  issued,  or  in  any  county  where  such  levy  was  made, 
in  whole  or  in  part,  within  this  state,"  did  not  apply  to  suits  pending  at  its  pus- 
sage.    As  to  the  power  of  the  legislature  over  remedies,  see  Myer  on  Vested 
Rights. 

4  R.  S.  1194,  exception  1. 
8  R.  S.  1194,  exception  2. 


_'.'}.]  MF    OF   ACTIONS. 

contemplation  has  a  domicile  somewhere,  and  can  have  but  one  at 

jiven  time,1  it  would  seem  to  follow  that  a  transient  person  is 

a  non-re>ident  of  the  state,  temporarily  sojourning  within  the  state. 

He  is  not  a  person  whose  residence  is  simply  unknown  to  the 

plaintiff:  and  where  a  defendant  in  a  suit  on  a  contract  pleaded  in 

abatement  that  at  the  time  suit  was  brought  he  was  a  resident  citi- 

t  a  certain  county,  and  not  subject  to  be  sued  in  the  county  in 

which  suit  was  brought,  and  thereupon  plaintiff  amended,  alleging 

that  at  the  commencement  of  the  suit  defendant  was  a  transient 

•  n.  having  no  fixed  domicile  known  to  the  plaintiff,  but  no  al- 

:on  was  made  to  repel  the  legal  presumption  that  defendant's 

'•nee  could  have  been  ascertained  by  proper  inquiry,  it  was 

hdil  that  the  district  court  should  not  have  retained  jurisdiction  of 

the  case.2     It  is  held  that  a  non-resident  may  be  sued  as  a  transient 

person  under   Hartley's   Digest,  page  241,  evidently  referring  to 

the  provision  at  the  head  of  this  section.3    The  Vermont  court  says 

a  transient  person  is  a  wanderer  ever  on  the  tramp.4    But  this  is 

evidently  not  the  person  intended  by  the  statute. 

£  223.  Residence  without  the  state,  or  unknown. 

Where  the  defendant,  or  all  of  several  defendants,  reside  without 
the  state,  or  where  the  residence  of  the  defendant  is  unknown,  suit 
may  be  brought  in  the  county  in  which  the  plaintiff  resid> 

AVhere  a  person  is  in  the  act  of  removing  his  domicile  from  one 

county  to  another,  it  seems  that  he  may  be  sued  in  either.    At  lea>t 

where  he  has  his  residence  in  one  county  for  a  considerable  time 

anterior  to  the  bringing  of  the  suit,  he  may  be  sued  in  that  county, 

unless  he  has  effected  an  actual  and  complete  change  of  residence 

from  that  to  another,  not  only  by  going  to  prepare  a  home  for  his 

family  in  the  latter  county,  but  by  actually  removing  his  family  and 

principal  effects  thereto.8     The  fact  that  the  defendant  does  busi- 

ni  the  county  in  which  he  is  sued  does  not  give  jurisdiction,  if 

learly  proved  that  his  domicile  is  in  another  county.7 

•ss  v.  Evarts,  28  T.  523;  Desmare  v.  United  States,  8  Otto,  605,  14  M> .  r 
L  Dec.,  p.  519,  g.V->. 
-  Brown  v.  Read,  33  T.  629. 

Mullen  v.  Guest,  6  T 
<  Mid. II, -bury  v.  Waltham.  6  Vt  203. 
»R  S.  1194,  exception  8. 

•Brown  v.  Boulden,  18  T.  431;  Wilson  v.  Brid-man,  24  T.  615;  Tucker  v.  Ander- 
A  defendant  who  had.  for  eighteen  years,  resided  on  his  planta- 
tion in  Wharton  county,  actuated  by  considerations  of  health,  removed  his  whit-- 
family  and  house  servants,  in  June,  IHoG.  to  Comal  county,  win-re  they  remain,  d 
until  October,  1858,  during  which  time  the  plantation  in  Wharton  county  was 
still  carried  on.     On  these  facts  it  was  held  that  in  February,  lx>.  he  had  such 
lencein  Comal  county  as  authorized  the  plaintiff  to  sue  him  in  that  county. 
Tucker  v.  Anderson.  '21  T 
iBluchor  v.  Milsted,  31  T.  621. 


252  VENUE   OF   ACTIONS.  [§  223. 

When  it  is  uncertain  in  which  of  two  counties  a  defendant  re- 
sides, he  may  be  sued  in  either.  In  the  case  of  partners,  where  the 
residence  of  one  is  certain  and  that  of  the  other  is  doubtful,  the 
question  of  venue  is  not  left  uncertain.1 

Where  suit  is  brought  in  the  county  of  plaintiff's  residence,  on 
the  ground  that  defendant's  residence  is  unknown,  a  plea  by  de- 
fendant stating  a  lonafide  residence  in  another  county  makes  only 
&prima facie  case  in  his  favor,  and  where  plaintiff  offers  evidence 
to  show  that  defendant's  residence  was  in  fact  unknown  to  him  at 
the  institution  of  the  suit,  and  could  not  be  discovered  on  diligent 
inquiry,  jurisdiction  will  be  retained.  The  disclosing  of  defend- 
ant's place  of  residence  by  his  plea  is  not  sufficient  to  defeat  the 
jurisdiction.2 

Where  suit  is  brought  against  two  or  more  defendants  jointly 
liable,  if  the  residence  of  one  defendant  is  known  and  that  of  the  oth- 
ers unknown,  the  suit  must  be  brought  in  the  county  of  the  one 
whose  residence  is  known.3 

After  exceptions  sustained  to  citation  to  defendant  and  to  serv- 
ice, the  defendant  voluntarily  appeared,  no  new  process  having 
issued,  and  filed  pleas  to  the  jurisdiction  of  the  court  only  as  to  the 
subject-matter  of  the  suit  and  the  venue  of  the  cause,  defendant  al- 
leging that  he  was  not  a  citizen  of  Texas.  It  was  held  that  the 
defendant's  appearance  being  voluntary,  the  court  had  jurisdiction 
of  his  person  as  fully  as  though  he  had  been  served  with  proper 
process;  that  the  court  having  jurisdiction  of  his  person,  and  he 
being  a  non-resident,  the  suit  was  properly  brought  in  the  county 
of  the  plaintiff's  residence ;  that  the  defendant  being  sued  for  dam- 
ages on  account  of  a  conversion  of  plaintiff's  property,  it  was  im- 
material where  the  property  was  when  the  suit  was  brought,  or 
whether  it  was  wrongfully  converted  within  or  without  the  state, 

1  Blum  v.  Younger,  2  U.  C.  302.  In  a  case  where  the  proper  venue  depended 
on  the  residence  of  the  defendant,  it  was  found  that  he  had  gone  from  the  county 
in  which  he  had  fir^fc  lived  to  another  county,  and  had  there  engaged  in  busi- 
ness, taking  with  hirn  all  his  movable  property;  that  he  had  sold  his  house  and 
given  possession,  but  had  returned,  and  was  only  prevented  from  removing  his 
family  by  sickness,  and  it  was  notorious  that  he  had  removed  from  the  county 
of  his  former  residence,  It  was  held  that,  when  it  is  uncertain  in  which  of  two 
counties  a  defendant  has  his  residence,  he  may  be  sued  in  either,  In  this  case 
he  could  not  properly  be  sued  in  the  county  where  he  first  resided,  Faires  v. 
Young,  69  T.  482  (6  S.  W.  Rep.  800),  Three  partners  residing  in  Dallas  under- 
took a  larsce  contract  in  Galveston,  possibly  running  through  several  years, 
though  their  connection  might  cease  at  any  time.  Two  of  the  partners  lived  in 
Galveston  with  their  families,  but  expected  to  return  to  Dallas  on  the  comple- 
tion of  the  work.  It  wa»  held  that  the  firm  could  not  demand  that  a  suit  against 
th  -m  be  removed  to  Dallas  county,  O'Connor  v,  Cook,  26  S,  W,  Rep.  1113. 

*  Kuteman  v.  Page,  8  App.  C,  C,,  §  104    And  see  Walker  v,  Walker,  32  T,  331. 

3Claiborne  v,  Pickeas,  4  App,  C,  C,,  §  117, 


Jt.]  NTE  OF  ACTI<  253 

and  that  it  was  equally  unimportant  whether  defendant  had  re- 
d  the  property  under  a  contract  to  deliver  within  this  state  or 
not.  Having  voluntarily  given  to  a  court  of  Texas  jurisdiction  of 
his  jtpiNon,  he  could  not  on  a  subsequent  appeal  to  the  district  court 
withdraw  jurisdiction  from  that  court,  but  the  power  existed  in 
that  court  to  declare  the  extent  of  his  liability,  and  enforce  pay- 
ment thereof  by  sale  of  any  property  belonging  to  him  found  within 
the  limits  of  the  state.1  Suit  was  brought  in  Texas  by  a  non-resi- 
dent plaintiff  against  a  non-resident  defendant,  having  once  been 
partners,  to  prove  up  for  record  (under  art.  4664,  R.  S.)  an  instru- 
ment in  writing  which  on  its  face  certified  that  the  defendant  had 
given  up  to  plaintiff  all  claims  which  once  belonged  to  both,  and 
also  all  claims  to  land  which  belonged  to  both.  The  firm  did  own 
land  in  Texas,  but  not  situate  in  the  county  where  the  suit  was 
brought.  On  plea  to  the  jurisdiction  in  the  nature  of  a  plea  in 
abatement,  calling  in  question  the  power  of  the  district  court  to 
adjudicate  upon  the  subject-matter,  it  was  held  that  the  statute  in 
such  a  case  does  not  fix  the  venue,  and  the  parties  being  non-resi- 
dents, having  no  domicile  in  Texas,  the  venue  must  be  determined 
neral  rules  applicable  to  the  matter,  independent  of  statute; 
that  the  cause  of  action  was  not  local  but  transitory,  though  the 
result  of  the  action  might,  on  some  future  contingency,  affect  the 
title  to  land  indirectly,  and  that  the  cause  of  action  wras  one  re- 
garding which  jurisdiction  could  be  exercised  in  the  district  court 
of  any  county  in  which  service  could  be  obtained  on  the  defendant, 
or  where  he  might  appear  and,  by  making  defense,  waive  service.' 

§  224.  Residence  of  defendants  in  different  counties. 

Where  there  are  two  or  more  defendants  residing  in  different  coun- 
ties, the  suit  may  be  brought  in  any  county  where  any  one  of  the  de- 
fendants resides.'  The  defendant  who  resides  in  the  county  where 
the  suit  is  brought  must  be  either  a  necessary  or  proper  party  de- 

i  Liles  v.  Woods,  58  T.  416. 

*Pegram  v.  Owens,  64  T.  475.  A  plaintiff  brought  suit  by  publication  in 
the  county  of  his  residence,  against  non-residents,  and  alleged  in  his  petition 
that  defendants  had  no  property  in  the  state  other  than  a  note  due  them  by 

*  resident  in  a  different  county,  which  note  was  in  the  hands  of  an  attor- 
ney resident  in  the  county  where  suit  was  brought,  and  prayed  for  judgment 
and  satisfaction  thereof  out  of  the  proceeds  of  the  note  when  collected,  and 
also  for  an  injunction  restraining  the  attorney  from  paying  over  to  the  defend- 

•  lie  proceeds  of  the  note  until  plaintiff's  judgment  should  be  satisfied. 
The  defendants  excepted  to  the  jurisdiction  of  the  court,  on  the  ground  that, 

plaintiff's  own  showing,  the  defendants  were  non-residents,  and  had  no 
property,  effects,  claims  or  demands  in  the  county  where  the  suit  was  brought 

-  held  that  the  suit  was  well  brought,  and  that  the  exception  was  prop- 
erly overruled.    Mickie  v.  McOehee,  27  T.  134. 

1 R,  S.  1194,  exception  4;  Erath  Co.  v.  Robinson,  80  T.  433;  Randon  r.  Barton, 
i  T.  .>S9;  Raymond  v.  Holmes,  11  T.  54. 


VEXUE   OF   ACTIONS.  [§  221. 

fendant;  if  he  is  neither  a  necessary  nor  proper  party,  a  plea  to  the 
jurisdiction  filed  by  non-residents  of  the  county  joined  with  him  in 
the  action  should  be  sustained.  When  such  a  plea  is  interposed  by 
one  of  several  who  are  joined  as  defendants  in  a  suit  to  recover 
damages  for  a  tort,  brought  in  a  county  where  he  does  not  reside, 
and  there  is  evidence  tending  to  establish  the  fact  that  the  defend- 
ant who  resides  at  the  venue  of  the  cause  is  not  liable,  it  is  error 
not  to  present  in  a  charge  to  the  jury  the  issue  thus  arising  on  the 
plea  to  the  jurisdiction.1  If  the  defendant  has  been  sued  in  the 
wrong  county  by  the  joinder  of  a  fictitious  co-defendant,  though  by 
mistake,  the  suit  should  be  dismissed;  that  is,  if  the  real  defendant 
has  not  voluntarily  submitted  to  the  jurisdiction.2  A  note  may  be 
assjgned  by  the  payee  so  as  to  confer  jurisdiction  in  the  county  of 
his  residence,  if  the  assignment  is  made  bona  fide,  for  the  purpose 
of  applying  the  proceeds  of  the  note  in  payment  of  a  debt  due  the 
assignee.3 

Suit  may  be  brought  in  the  county  in  which  one  of  two  or  more 
defendants  resides  without  regard  to  the  character  of  a  defendant's 
liability,  whether  primary  or  secondary —  it  may  be  brought  in  the 
county  in  which  the  guarantor  or  surety  resides  when  he  is  joined 
with  the  principal.4  It  may  be  brought  in  the  residence  county  of 
any  one  of  several  defendants,  whether  such  defendant  is  sued  as  prin- 
cipal or  surety.5  Suit  against  the  maker  and  the  indorser  of  a  note 
may  be  brought  in  the  county  in.  which  the  latter  resides.6  Where 
goods  are  sold  and  the  purchaser's  note  is  taken,  in  a  suit  on  the 
note  in  the  county  of  the  maker's  residence  one  who  had,  by  letter, 
guarantied  payment  of  the  price  of  the  goods  is  properly  joined, 
though  his  residence  is  in  another  county.7 

1  Tex.  &  Pac.  Ry.  Co.  v.  Mangum.  68  T.  342  (4  S.  W.  Rep.  617);  Raymond  v. 
Holmes,  11  T.  54;  Poole  v.  Pickett,  8  T.  122.     A  plea  that  the  use  of  plaintiffs 
name  as  plaintiff,  and  that  of  a  co-defendant  as  defendant,  and  the  indorsement 
of  the  note  sued  on,  are  but  fraudulent  contrivances  to  confer  jurisdiction  on 
the  county  in  which  the  co-defendant,  the  indorser,  resides,  and  to  deprive  the 
defendant  of  the  privilege  of  being  sued  in  the  county  of  his  domicile,  is  good. 
Poole  v.  Pickett,  8  T.  122. 

2  Henderson  v.  Kissam,  8  T.  46. 
»  Christie  v.  Gunter,  26  T.  700. 

4  Bergstrom  v.  Bruns,  24  S.  W.  Rep.  1098. 

*  Lyons  v.  Daugherty,  26  S.  W.  Rep.  146. 

«  Williams  v.  City  Nat  Bank  of  Quanah,  27  S.  W.  Rep.  147. 

7  Vogelsang  v.  Mensing,  1  App.  C.  d,  §  1165.  Suit  was  brought  by  a  surety  on  an 
administrator's  bond,  in  which  by  its  terms  the  obligation  of  the  parties  was  made 
joint  and  several,  against  his  co-sureties  for  contribution,  alleging  the  death  and 
insolvency  of  the  administrator  and  the  payment  of  the  bond  by  plaintiff  on 
judgment  rendered,  and  it  was  held  that  the  suit  could  be  maintained  against  all 
the  co-sureties  in  any  county  in  which  either  of  them  resided.  Rush  v.  Bishop, 
60  T.  177.  Suit  on  vendor's  lien  note  payable  to  bearer.  The  note  had  passed 
by  delivery  from  the  payee.  This  holder  indorsed  the  note  and  a  bank  became 


_'.">.]  VENUE    OF    ACTI- 

Persons  jointly  liable  with  a  railroad  company  may  be  joined  in 
a  suit  against  such  company  brought  in  a  county  other  than  that 
in  which  tli«*y  rasde,  provided  such  county  is  the  one  in  which  the 
railroad  company  has  its  domicile.1 

£  225.  Contract  to  be  performed  in  a  particular  county. 

Where  a  person  has  contracted  in  writing  to  perform  an  obliga- 
tion in  any  particular  county,  suit  may  be  brought  either  in  such 
fount v  or  where  the  defendant  has  his  domicile.5 

Suit  is  properly  brought  in  the  county  in  which,  by  its  terms,  the 
written  contract  was  to  be  performed.5  And  it  has  been  held  that 
the  statute  contemplates  that  the  written  contract  should  plainly 
provide  that  it  is  to  be  performed  in  a  county  other  than  that  in 
which  defendant  resides.4  A  contract  in  relation  to  the  sale  and 
purchase  of  wheat  was  made  by  letters  and  telegrams,  and  was  in 
substance  as  follows:  "We  will  sell  you  ten  cars  of  wheat,  F.  0. 13., 
at  McKinney,  Collin  county,  at  sixty-five  cents."  Reply:  "I  will 
take  ten  cars  F.  O.  B.  at  sixty-live  cents."  This  was  held  not  a  con- 
tract to  pay  for  the  wheat  in  Collin  county.  The  letters  "  F.  O.  B." 
do  not  mean  a  promise  to  pay  for  goods  at  the  place  of  shipment.'* 

In  a  later  case,  in  which  no  reference  is  made  to  the  case  above 
cited,  the  action  was  based  on  a  contract  by  letter,  written  by  a 
private  corporation,  in  reference  to  a  proposed  sale  and  purchase  of 
cotton  seed, — "We  will  be  glad  to  handle  your  shipments,  and  beg 
to  quote  you  §9  per  ton  good  crop  seed  f.  o.  b."  This  was  held  a 
contract  to  pay  at  the  place  of  shipment.' 

holder.  It  sued  the  maker  and  indorser  in  the  county  of  the  residence  of  the  in- 
doraer.  The  maker  by  plea  contested  the  jurisdiction  of  the  court  over  him. 
It  was  held  the  court  had  jurisdiction  of  the  case  and  to  foreclose  the  lien. 
Anderson  v.  Bank,  86  T.  618  (28  S.  W.  Rep.  344).  The  petition  showed  that  B. 
and  P.  had  a  cause  of  action  against  T.  in  amount  sufficient  to  give  jurisdiction 
to  the  county  court.  P.  had  sold  his  half  of  the  claim  to  B.,  and  guarantied 
payment  of  $125.  In  suit  by  B..  P.  was  a  proper  party.  The  statute  allowing 
suit  in  the  county  of  the  residence  of  one  of  several  defendants  makes  no  dis- 
tinction as  to  the  character  of  his  liability,  whether  primary  or  as  security. 
Turner  v.  Brooks,  2  Civ.  App.  451  (21  S.  W.  Rep.  404). 

>  Red  River,  S.  &  W.  Ry.  Co.  v.  Blount,  8  Civ.  App.  282.  See  §  245,  post,  and 
notes. 

1 R.  S.  1194.  exception  &. 

1  Phillips  v.  Adkins,  1  App.  C.  C.,  g  292. 

«  Baker  v.  Foster,  3  App.  C.  C.,  §  305. 

8  Cameron  v.  Webb,  3  App.  C.  G,  g  417. 

'  Merchants'  &  Planters'  Oil  Co.  v.  Seeligson.  4  App.  C.  C.,  §  200.  A  memoran- 
dum in  writing,  in  relation  to  a  contract  for  the  purchase  of  coal,  stating  the 
amount  of  coal  bought,  the  price  and  place  of  delivery,  and  a  reply  thereto  ac- 
knowledging receipt  and  requesting  to  be  advised  of  the  arrival  of  the  coal,  do 
not  constitute  a  contract  on  the  part  of  the  pure'  rform  the  obligation 

in  any  particular  county.  Walthew  v.  Mil!>y.  :i  App.  C.  L'..  ?;  1'J'J.  Tin-  i'^-t  that 
defendants  were  running  and  operating  a  mill  in  a  county  through  their  agent, 


256  VENUE   OF  ACTIONS.  [§  225. 

In  other  cases  it  is  held  that  the  question  to  be  determined  is, 
whether  the  legal  effect  and  purport  of  the  written  instrument  is 
that  it  should  be  performed  in  the  county  where  the  suit  is  brought.1 
And  this  appears  to  be  in  accordance  with  the  weight  of  authority. 
It  is  held  that  an  action  on  a  specific  contract  to  deliver  goods  at  a 
certain  place  may  be  commenced  in  the  county  where  the  goods 
were  to  be  delivered,  or  in  the  county  where  the  defendant  resides.2 
A  claim  bond  is  returnable  to  the  proper  court  of  the  county  in 
which  the  levy  was  made,  and  it  may  be  sued  on  in  such  county.3 
]>ut  it  is  held  that  a  county  convict  bond  is  not  a  contract  to  be 
performed  in  the  county  in  which  it  is  executed.  The  obligor  must 
be  sued  in  the  county  of  his  residence.4  The  exception  does  not 
apply  to  a  surety  on  an  administrator's  bond,  when  the  administra- 
tion is  pending  in  a  different  county  from  that  of  the  surety's  resi- 
dence. Such  a  bond  does  not  require  the  surety  to  answer  for  the 
defalcation  of  his  principal  in  any  particular  county.9 

A  suit  on  a  note  and  to  foreclose  a  lien  on  personal  property  was 
held  properly  brought  in  the  county  in  which  the  note  was  payable. 

while  they  had  their  domicile  in  another  county,  and  that  the  agent  contracted 
the  debt  in  the  county  where  the  mill  was  situated  for  the  use  and  benefit  of 
the  defendants,  would  not  make  them  liable  to  be  sued  in  such  county,  miles?, 
as  part  of  the  contract,  the  defendants,  through  their  agent,  had  further  bound 
themselves  to  pay  the  debt  in  that  particular  county.  It  is  not  sufficient  that  a 
person  contracted  the  debt  sued  for  in  a  certain  county,  but  he  must  also  con- 
tract to  perform  it  in  that  county.  It  must  ba  a  part  of  a  written  contract. 
Mann  v.  Clapp,  1  A  pp.  C.  C..  §  503. 

It  does  not  follow  that  because  one  has  agreed  to  render,  and  has  rendered, 
services  in  a  particular  county,  the  contract  also  obligates  the  other  party  to  pay 
in  that  county.  The  liability  to  pay  is  a  general  one,  and  not  one  which  obliges 
the  party  to  pay  at  any  particular  place.  Little  v.  Woodbridge,  1  App.  C.  C., 
S  1.V1 

1  Henry  v.  Fay,  2  App.  C.  C.,  §§  834,  835.  It  is  held  that  if  any  place  in  such 
county  is  attempted  to  be  designated  by  the  contract,  it  is  admissible  to  prove 
all  the  attendant  circumstances  to  show  that  the  place  named  was  intended  to 
mean  a  place  in  the  county.  The  above  ruling  was  made  in  a  suit  on  a  note 
which  was  alleged  to  be  made  payable  at  Gainesville  Bank,  and  the  note  offered 
in  evidence  purported  to  be  payable  at  "Goneville  Bank."  The  court  holds  that 
by  a  proper  amendment  the  variance  might  be  explained  so  as  to  show  jurisdic- 
tion; but  it  is  not  intimated  that  in  any  case  any  presumption  may  arise  as  to 
the  place  of  performance  of  a  contract  simply  from  the  nature  of  the  contnu  t 
or  the  circumstances  attending  it. 

*  Barrow  v.  Philleo,  14  T.  345. 

8  Denson  v.  Horn,  4  App.  C.  C.,  §  226. 

*  Baker  v.  Foster,  3  App.  C.  C.,  §  305. 

8  Cohen  v.  Munson.  59  T.  236.  To  entitle  a  plaintiff  to  sue  in  a  county  othrr 
than  the  residence  of  the  defendant  he  must  bring  his  case  clearly  within  the 
statute.  A  contract  for  the  building  of  a  house,  and  a  bond  conditioned  that 
the  contractor  build  the  house  as  he  contracts  to  do,  are  two  separate  contracts. 
The  latter,  unless  otherwise  expressed  on  its  face,  can  be  sued  on  only  at  tl-e 
residence  of  one  or  more  of  the  makers.  Lindheim  v.  Muschamp,  72  T.  33  (12 
S.  W.  Rep.  125). 


J.">.]  OF  ACTI<  257 

Tin.-  property  on  which  the  lien  was  claimed  was  in  the  possession 

third  person,  who  was  made  a  party,  but  it  does  not  appear 

from  tlif  opinion  whether  the  property  was  located  in  the  county 

in  which  the  suit  was  brought  or  in  some  other  county.1     Goods 

sold  to  A.,  a  resident  of  Shelby  county,  upon  his  written 

orders  containing  the  following  statement:  "This,  as  well  as  all 

previous  and  subsequent  purchases,  is  payable  at  your  office  in  Gal- 

veston,  with  interest,"  etc.     After  the  orders  were  given,  money 

advanced  to  him  with  which  to  purchase  cotton.     Suit  was 

irht  against  him  in  Galveston  county  for  a  balance  due  on  the 

is  and  for  a  balance  due  on  account  of  money  advanced,  and  it 

was  held  that  his  plea  of  privilege  should  have  been  sustained  as  to 

the  claim  for  balance  on  money  advanced.     The  word  purchases  in 

tin;  written  orders  did  not  embrace  the  money  transaction.2 

The  suit  may  be  brought  in  the  county  in  which  the  contract  is  to 
l»e  performed  or  in  the  county  of  defendant's  domicile.* 

The  contract  must  be  in  writing;  an  oral  agreement  is  not  suffi- 
cient.4 

Suit  on  three  notes  was  held  properly  brought  in  the  county  in 

1  Mathews  v.  Denison,  1  App.  C.  C.,  §  1256. 

2  Baines  v.  Mensing,  3  App.  C.  C.,  §  363  (75  T.  200).    Defendant,  for  the  purpose 
of  procuring  credit,  made  and  signed  a  statement  of  his  assets  and  liabilities, 
and  to  this  was  attached  an  agreement  that  "All  purchases  made  from  Leon  and 
II.  Blum  are  payable  in  Galveston."    Suit  was  properly  brought  in  Galveston 
county,  whether  the  purchases  were  made  at  the  time  of  the  agreement  or  after- 

&  Traylor  v.  Blum,  7  S.  W.  Rep.  829.  Defendant,  a  citizen  of  Van  Zamlt 
county,  wrote  the  following  letter  to  plaintiffs,  citizens  of  Galveston:  "  I  make 
the  following  statement  of  my  commercial  standing  with  a  view  of  obtaining 
$2,000  as  advance  from  you,  for  which  I  promise  to  make  you  liberal  shipments 
of  cotton  this  coming  season,  and  to  reduce  and  settle  off  my  account  at  your 
in  Galveston,  Texas,  as  follows:  To  reduce  to  $1,500  by  1st  of  December, 
and  to  reduce  to  $1,000  by  1st  of  January,  1879,  and  to  reduce  to  $500  by  1st  of 
IVliruary,  1879,  and  to  settle  in  full  by  15th  of  March,  1879,  and  to  have  an  in- 
terest account  at  ten  per  cent  per  annum."  An  action  to  recover  a  balance 
due  for  advances  and  supplies  was  properly  brought  in  Galveston  county. 
Kautrman  v.  Dean,  2  U.  C.  195. 

An  action  by  the  state  to  recover  rent  due  on  a  lease  of  school  lands  urul.  r 
the  act  of  1883  was  properly  brought  in  the  county  in  which  the  r.-nt,  by  the 
is  of  thf  lease,  was  payable.  Fitzgerald  v.  State,  9  S.  W.  Rep.  150. 

A.  and  B.  made  a  contract  by  the  terms  of  which  A.  agreed  to  honor  the 

-  of  B.  to  the  extent  of  $40  on  each  bale  of  cotton  shipped  to  A.  a 

i,  and  if  the  cotton  when  sold  did  not  bring  $40  per  bale,  B.  was  to  refund 
tii.-  dt-ti«-it.    There  was  a  deficit,  and  A.  sued  B.  in  Galveston  county,  ai  J 

-  h«>ld  that  B.  did  not  undertake  to  pay  in  that  county.    Morrison  v.  Jak- 
nick.  1  App.  G  i'..  . 

'Durst  v.  Swift,  11  T.  v'7:!;  Barrow  v.  Philleo,  14  T.  345. 

«Bain.  s  v.  M,  using,  75  T.  200  (12  S.  W.  Rep.  984).     In  Miller  v.  McDannell,  1 
-'58,  the  court  In  la   that  a  promise  that  goods  bought  should  be  paid  for 
"  over  the  counter"  at  the  purchaser's  place  of  business  is  a  sufficient  contract 
to  make  the  money  due  therefor  payable  in  the  county  in  which  the  bu- 
is  conducted,  but  without  noticing  the  fact  that  the  promise  was  made  orally. 


VENUE   OF    ACTIONS.  [§  226. 

which  two  of  the  notes  were  payable,  no  place  of  payment  being- 
named  in  the  third  one.1 

"Where  a  contract  is  by  its  terms  to  be  performed  in  a  particular 
county,  one  who  guaranties  the  performance  of  such  contract  may 
be  sued  in  that  county.2  An  allegation  that  the  defendant  under- 
took to  pay  the  debt  sued  for  in  a  certain  county  is  sufficient  with- 
out setting  out  the  contract.3 

§  226.  Validity  ot  contract  as  to  venue. 

Parties  residing  in  one  county  gave  a  bond  to  secure  a  contract 
for  the  construction  of  a  building  in  another  county,  stipulating 
therein  that  a  suit  for  breach  of  the  bond  might  be  instituted  in 
such  other  county.  It  was  held,  in  a  suit  on  the  bond  by  the  ob- 
ligee, that  defendants'  plea  of  privilege  to  be  sued  in  the  county  of 
their  residence  was  not  tenable.  Such  waiver  and  agreement  does 
not  come  within  the  inhibition  contained  in  article  1349  of  the  Ee- 
vised  Statutes,  invalidating  agreements  for  acceptance  of  service, 
waiver  of  process,  entry  of  appearance,  or  confession  of  judgment. 
The  article  cited  provides  that  the  acceptance  of  service  and  waiver 
of  process,  or  the  entry  of  appearance  in  open  court,  or  a  confession 
of  judgment,  shall  not  be  authorized  by  the  instrument  in  writing 
sued  on,  or  any  other  instrument  executed  prior  to  the  institution 
of  the  suit,  and  that  an  acceptance  or  waiver  of  process  shall  not  be 
made  until  after  suit  brought.  It  does  not,  it  is  held,  extend  beyond 
the  matters  named,  none  of  which  enter  into  the  waiver  agreed  to 
in  this  case.4  Before  the  adoption  of  the  article  referred  to,  an 
agreement  authorizing  suit  to  be  brought  in  any  county  in  the 
state  and  the  designation  of  an  attorney  to  waive  process  and  con- 
fess judgment,  with  power  to  sue  out  attachments  and  other  writs 
at  pleasure,  waiving  all  right  of  action  for  damages,  was  held 
valid ; 8  but  it  is  thought  that  an  agreement  to  that  extent  could  not 
be  sustained  under  the  article  in  question. 

1  Middlebrook  v.  Manufacturing  Co.,  86  T.  706  (26  S.  W.  Rep.  935).    In  Yeager  v. 
Focke,  6  Civ.  App.  542  (25  S.W.  Rep.  662),  the  judgment  was  sustained  on  an 
account  containing  several  items  and  payable  in  a  certain  county,  but  was  re- 
formed by  deducting  one  item  which  was  not  payable  in  the  county  in  which  the 
suit  was  brought.     In  Altgelt  v.  Harris,  11  S.  W.  Rep.  857.  it  was  held  that  a 
cause  of  action  suable  only  in  the  county  of  defendant's  domicile  cannot  be  joined 
with  one  which  may  be  sued  upon  in  another  county,  the  place  of  performance, 
thus  compelling  defendant  to  submit  to  the  jurisdiction  in  the  latter  county. 

2  Looney  v.  Le  Gierse,  2  App.  C.  C.,  §  532. 

3  Whittaker  v.  Wallace,  2  App.  C.  C.,  §  558. 

*  Ft.  Worth  Board  of  Trade  v.  Cooke,  6  Civ.  App.  324  (25  S.  W.  Rep.  330);  Bur- 
leson  v.  Lindsey,  23  S.  W.  Rep.  729. 

*Grubbs  v.  Blum,  62  T.  426.  K,  defendant,  a  resident  of  Austin  county,  exe- 
cuted a  written  contract  containing  the  following  stipulations:  1.  That  the  in- 
debtedness should  be  paid  at  plaintiff's  office  in  Galveston,  Texas.  2.  That  the 


*7,  228.]  VENUE  OF  ACTIONS.  259 

.-'  227.  Actions  against  executors,  administrators  or  guardians. 

Where  the  suit  is  against  an  executor,  administrator  or  guardian 
as  such,  to  establish  a  money  demand  against  the  estate  which  he 
represents,  it  must  be  brought  in  the  county  in  which  such,  estate 
is  administered.1  This  provision,  as  it  appears  in  Paschal's  Digest, 
is  as  follows:  "Incases  of  executors,  administrators,  or  guardians 
of  an  estate,  or  trustees,  who  must  be  sued  in  the  county  in  which 
the  estate  is  administered."2  The  provision  that  the  suit  must  be 
one  "  to  establish  a  money  demand  against  the  estate,"  it  seems,  has 
been  added  since  1874.  Those  cases,  therefore,  which  hold  that  all 
cases  against  executors,  administrators,  etc.,  must  be  brought  in  the 
county  in  which  the  estate  is  administered  are  no  longer  of  any 
force.8 

The  venue  of  a  suit  upon  the  bond  of  an  administrator  for  failing 
to  pay  over  money  pursuant  to  the  order  of  the  court  on  final  set- 
tlement is  properly  laid  in  the  county  of  the  residence  of  the  de- 
fendants, not  in  the  county  of  the  administration.  The  statute 
under  consideration  does  not  apply  to  such  a  case.4 

A  bill  against  an  executor  to  obtain  a  construction  of  a  will  must 
be  brought  in  the  county  in  which  the  executor  has  his  domicile. 
Such  a  suit  is  not  one  "to  establish  a  money  demand."5 

"28.  Fraud  or  official  defalcation. 

In  all  cases  of  fraud,  and  in  cases  of  defalcation  of  public  officers, 
suit  may  be  instituted  in  the  county  in  which  the  fraud  was  com- 
mitted, or  where  the  defalcation  occurred,  or  where  the  defendant 
lias  his  domicile.6 

The  fraud  which  will  authorize  a  defendant  to  be  sued  out  of  the 
county  of  his  residence  means  fraud  in  reality,  and  an  ordinary  re- 
fusal by  the  defendant  to  comply  with  his  contract  is  not  such 

attorney  of  K.  should  be  authorized  to  "appear  in  open  court,  at  any  time,  and 
in  any  court  having  jurisdiction  of  the  amount,"  and  waive  process  and  confess 
judgment  upon  said  indebtedness  or  any  portion  thereof.  3.  That  an  attach- 
iiu-iit  mi^'ht  be  sued  out  by  plaintiffs  upon  said  indebtedness,  or  any  part  thereof, 
in  "any  court  or  courts  having  jurisdiction  of  the  amount  or  amounts  sued 
for."  4.  That  all  claims  which  the  said  K.  might  prefer  by  reason  of  any  attach- 
im-nt  sued  out  should  be  asserted  by  him  "in  the  court  or  courts  whence  such 
attachment  issued,  and  not  elsewhere."  Suit  was  brought  in  Colorado  county, 
and  it  was  held  error  to  sustain  defendant's  plea  of  privily-1.  Tin-  stipulations 
authorized  a  suit  in  any  county  in  the  state.  Lewy  v.  Karger,  3  App.  C.  C., 
$109. 

i  R.  S.  1194.  exception  6. 

I ).  (edition  of  1874),  art.  1 

»  Neill  v.  Owen,  8  T.  145;  Richardson  v.  Wells,  3  T.  223.  And  see  Durst  v.  Swift, 
11  T.  273;  and  Finch  v.  Edmondson,  9  T.  504. 

« Stewart  v.  Morrison,  81  T.  396  (17  &  W.  Rep.  15). 

5  Crosson  v.  Dwyer,  30  &  W.  Rep.  929. 

*R.  S.  1194,  exception  7. 


260  VENUE   OF   ACTIONS.  [§  220. 

fraud  as  comes  within  the  meaning  of  this  statute.1  It  is  only 
•\vhrn  tlu-  principal  cause  of  action  is  a  fraudulent  act,  or  when  the 
main  object  of  the  suit  is  to  set  aside  a  fraudulent  transaction,  that 
a  suit  may  be  maintained  in  the  county  of  the  fraud.2  Where  the 
object  of  the  suit  is  to  recover  the  price  of  goods  sold,  this  provis- 
ion of  the  statute  cannot  be  invoked  on  the  ground  that  defendant 
had  practiced  a  fraud  upon  plaintiff  in  relation  to  the  sale  of  the 
goods.3  The  mere  allegation  that  defendant  fraudulently  induced 
plaintiff  to  enter  into  the  contract  with  intent  to  ruin  his  business, 
etc.,  and  that  there  was  a  breach  of  the  contract  to  plaintiff's  dam- 
age, is  not  sufficient.  Failure  to  comply  with  a  contract  does  not 
constitute  a  fraud  within  the  meaning  of  the  statute  simply  because 
it  results  disastrously  to  plaintiff's  business.4 

The  exception  applies  as  well  to  constructive  as  to  actual  fraud. 
Land  was  conveyed  by  deed  absolute  in  its  terms,  but  in  trust  to 
secure  a  loan.  The  grantee  in  breach  of  his  duty  sold  the  land  to 
bona  fide  purchasers.  Such  sale  was  fraudulent  and  gave  jurisdic- 
tion where  the  fraud  was  committed.5 

A  suit  to  set  aside  deeds  alleged  to  have  been  made  in  fraud  of 
creditors  was  properly  brought  in  the  county  of  defendant's  resi- 
dence, without  reference  to  the  location  of  the  land  conveyed.6 

§  229.  In  cases  ol  crime,  offense  or  trespass. 

"Where  the  foundation  of  the  suit  is  some  crime,  or  offense,  or 
trespass,  for  which  a  civil  action  in  damages  may  lie,  the  suit  may 
be  brought  in  the  county  where  such  crime,  or  offense,  or  trespass 
was  committed,  or  in  the  county  where  the  defendant  has  his  domi- 
cile.7 "  Where  the  defendant  has  committed  some  crime,  or  offense, 
or  trespass,  for  which  a  civil  action  in  damages  may  be  commenced  " 
is  the  wording  of  this  provision  in  Paschal's  Digest.8  The  word 
trespass,  it  seems,  was  added  by  the  amendment  of  1863,  and  the 
decisions  prior  thereto  held  that  a  suit  in  the  nature  of  trespass  de 
bonis  aspwtatis  did  not  come  within  the  exception,  because  the  act, 
without  a  breach  of  the  peace,  did  not  amount  to  a  crime.9  Under 
the  law  as  it  now  stands,  the  venue  in  cases  of  trespass  for  the  taking 
and  conversion  of  personal  property  is  in  the  county  where  the  act 
was  committed.10 

1  McLaughlin  v.  Shannon,  3  Civ.  App.  136  (22  S.  W.  Rep.  117). 

2  Freeman  v.  Kuechler,  45  T.  593,  citing  Finch  v.  Edmondson,  9  T.  504,  and 
Evans  v.  Mills,  16  T.  196;  Watson  v.  Baker,  67  T.  48. 

3  Cameron  v.  Webb,  3  App.  C.  C.,  §  418. 

4  Baines  v.  Mensing,  75  T.  200  (12  S.  W.  Rep.  984). 

^Boothe  v.  Fiest,  80  T.  141  (15  S.  W.  Rep.  799);  Evans  v.  Mills,  16  T.  196. 
«  Lehmberg  v.  Biberstein,  51  T.  467.     See,  also,  Finch  v.  Edmondson,  9  T.  504. 
7  R.  S.  1194,  exception  9;  Hill  v.  Kimball,  76  T.  210  (13  S.  W.  Rep.  59). 
»  P.  D.  (ed.  1874),  art.  1423. 

9 lilies  v.  Knight,  3  T.  312;  Robertson  v.  Ephriam,  18  T.  lia 
"Willis  v.  Hudson,  72  T.  598  (10  S.  W.  Rep.  713). 


§  229.]  OF  ACTIONS. 

Any  wrongful,  unlawful  act,  which  results  either  directly  or  in- 
directly to  the  injury  of  another,  either  in  his  person  or  his  prop- 
erty, ainl  for  which  a  civil  action  in  damages  will  lie,  is  a  trespass 
within  the  meaning  of  the  statute.1  The  difference  between  a  t«vh- 
nical  trespass  and  a  wrongful  act  from  which  an  injury  indirectly 
results  relates  only  to  the  form  of  the  action.  In  the  former  < -as.- 
it  is  an  action  of  trespass,  in  the  latter  trespass  on  the  case.  In  the 
Texas  system  this  distinction  is  not  made.  Where  a  barbed  win.' 
fence  is  not  constructed  as  required  by  the  statute,  and  injury  re- 
suits  to  the  property  of  another,  suit  may  be  brought  in  the  county 
where  the  injury  occurred.2  The  word  trc»pass  is  intended  to  em- 
brace only  actions  for  such  injuries  as  result  from  wrongful  acts 
wilfully  or  negligently  committed,  and  not  those  which  result 
from  a  mere  omission  to  perform  a  duty.3  In  its  widest  signification 
it  means  any  violation  of  law ;  in  its  most  restricted  sense  it  signifies 
an  injury  intentionally  inflicted  by  force,  either  upon  the  person  or 
property  of  another.  But  it  still  has  a  signification  in  law  much 
more  narrow  than  the  first,  and  more  enlarged  than  the  second 
meaning  given,  and  embraces  all  cases  where  injury  is  done  to  the 
person  or  to  property,  and  is  the  indirect  result  of  wrongful 

1Cook  v.  Horstman,  2  App.  C.  C.,  §  770;  Calm  v.  Bonnett,  62  T.  674 

»Cook  v.  Horstman,  2  App.  C.  C.,  §  770. 

'Ricker  v.  Shoemaker,  81  T.  22  (16  S.  W.  Rep.  645);  Austin  v.  Cameron,  83  T. 
351  (18  S.  W.  Rep.  437).  Where  an  employee  is  injured  by  the  want  of  perfect 
machinery  which  he  is  using  in  his  work,  or  by  the  want  of  care  of  one  in  con- 
trol of  the  work,  it  is  held  that  such  injury  is  not  the  effect  of  a  trespass  as  the 
word  is  used  in  the  statute,  Connor  v.  Saunders,  81  T.  633  (17  S.  W.  Rep.  236). 
Where  the  superintendent  of  a  work,  with  power  to  employ  and  discharge  hands, 
etc..  knowingly  and  intentionally  performs  a  negligent  act,  by  which  injury  re- 
sults to  an  employee,  such  act  constitutes  a  trespass,  and  an  action  may  be 
brought  in  the  county  in  which  the  act  was  committed,  though  not  the  county 
of  the  principal's  residence.  It  is  not  decided  that  the  act  would  amount  to  a 
trespass  if  it  were  merely  negligent,  but  the  inference  is  that  it  must  be  done 
with  a  full  knowledge  that  it  is  dangerous.  Connor  v.  Saunders,  29  S.  W.  Rep. 
1140. 

Suit  for  damages  for  personal  injuries  caused  by  the  defendant's  representa- 
tive failing  to  do  an  act  which  it  was  his  duty  to  do.  This  is  not  a  trespass 
within  the  meaning  of  the  exception.  Ricker  v.  Shoemaker,  81  T.  22  (16  S.  W. 
Rep.  645).  » 

Suit  was  brought  by  A.  for  the  benefit  of  himself  and  others  interested  against 
C.  &  Co.  for  damages  for  the  death  of  his  wife  and  child.  The  defendants  owned 
and  operated  a  ferry.  Plaintiff's  wagon,  in  which  were  his  wife  and  child,  was 
driven  upon  the  ferry-boat  of  defendants.  While  entering  it  the  rope  securing: 
the  boat  broke,  causing  the  engulfing  of  wagon  and  contents.  It  was  alleged 
that  the  defendants  solicited  cu<t»m  fur  the  ferry,  and  undertook  to  carry  plaint- 
iff's wagon,  etc.,  safely  across  the  stream.  It  was  charged  generally  that  wilful 
neglect  caused  the  death,  etc.  Suit  was  brought  in  the  county  where  the  acci- 
dent happened.  The  defendants  resided  in  another  county,  and  pleaded  their 
privilege  to  be  sued  at  their  residence.  It  was  held  that  whil--  the  act  com- 
plained of  might  be  considered  as  negligent  homicide.  \.  t  ;;«.  it  w:is  not  alleged 


£62  VENUE   OF   ACTIONS.  [§229. 

force.1  In  this  last  sense  the  word  would  include  injuries  to 
person  or  property  which  are  the  result  of  the  negligence  of  the 
wrong-doer,  and  it  seems  to  be  more  in  consonance  with  the  purpose 
and  spirit  of  the  exception  to  hold  that  it  was  in  this  sense  that  it 
was  intended  that  the  word  should  be  understood.  It  is  presumed 
the  exception  was  made  in  the  interest  of  the  injured  party,  and 
not  of  the  wrong-doer,  and  no  good  reason  is  perceived  why  a  dis- 
tinction should  be  made  between  an  injury  resulting  from  inten- 
tional violence  and  one  resulting  from  negligence.  It  is  probable 
that  the  consideration  which  induced  the  exception  was  that  one 
who  had  been  injured  in  his  person  or  his  property  by  the  wrongful 
or  negligent  conduct  of  another  should  not  be  driven  to  a  distant 

O      O 

forum  to  get  redress  of  his  wrongs.2 

that  the  defendants  were  personally  present  and  participating  in  the  act,  the 
petition  was  insufficient,  as  no  accomplice  can  exist  in  such  offense.  Austin  v. 
Cameron,  83  T.  351  (18  S.  W.  Rep.  437). 

An  action  for  damages  for  the  value  of  a  colt  owned  by  plaintiff,  and  alleged 
to  have  been  kicked  by  defendant's  horse,  from  which  injury  the  colt  died,  is 
properly  brought  in  the  county  where  the  act  was  committed.  The  petition 
charged  a  trespass.  Campbell  v.  Trimble,  75  T.  270  (12  S.  W.  Rep.  863). 

1  Abb.  Law  Die.,  "Trespass." 

2  Hill  v.  Kimball,  76  T.  210  (13  S.  W.  Rep.  59).     It  was  alleged  in  the  petition  in 
this  case  that  the  plaintiffs  were  husband  and  wife,  and  were  in  possession 
under  a  lease  of  a  dwelling-house  on  land  owned  by  defendant;  that  the  wife 
was  well  advanced  in  pregnancy,  the  defendant  knowing  the  fact,  and  that  any 
undue  excitement  to  a  woman  in  that  condition  was  likely  to  prove  a  serious 
injury  to  her  health ;  that  notwithstanding  these  facts  defendant  came  to  plaint- 
iff's house,  and  in  the  yard,  in  the  immediate,  presence  of  the  wife,  he  assaulted 
two  negroes  in  a  boisterous  and  violent  manner,  and  that  the  assault  was  ac- 
companied with  profane  language  and  resulted  in  drawing  blood;  that  the  con- 
duct of  defendant  frightened  the  wife  and  brought  on  the  pains  of  labor,  and 
eventually  produced  a  miscarriage,  and  otherwise  seriously  impaired  her  health. 
It  was  held  that  the  action  would  lie  either  in  the  county  in  which  the  tort  was 
committed  or  in  the  county  in  which  defendant  resided. 

A  petition  contained  allegations  which,  taken  together,  amounted  to  a  charge 
that  the  defendants  combined  falsely  to  accuse  the  plaintiff  of  swindling,  and 
in  pursuance  of  such  combination  did,  through  one  of  their  number,  make  such 
accusation  by  affidavit  before  a  magistrate  of  Wood  county,  and  that  this  was 
done  for  the  purpose  of  extorting  money  and  the  payment  of  a  debt  pretended 
to  be  due  defendants.  While  the  averments  were  not  so  specific  and  certain  as 
would  be  required  in  an  indictment,  they  were  held  sufficiently  certain  for  the 
purposes  of  civil  pleading.  The  acts  so  charged  constituted  an  offense  against 
the  laws  of  the  state.  The  offense  charged  was  in  the  nature  of  a  conspiracy, 
which  will  be  deemed  to  have  been  committed  where  any  act  in  pursuance  of 
the  common  design  was  performed  by  any  one  of  the  conspirators,  or  by  any 
other  person  at  their  instigation.  The  conspiracy  is  renewed  with  every  act 
done  in  pursuance  of  the  unlawful  design.  The  making  an  affidavit  against  the 
plaintiff  to  secure  his  arrest,  in  pursuance  of  the  common  design,  in  Wood 
county,  that  county  is  taken  to  be  the  county  in  which  the  offense  was  com- 
mitted, and  a  suit  for  damages  for  the  wrong  done  was  properly  brought  in  that 
county.  Raleigh  v.  Cook,  60  T.  438. 

A  boy  left  his  home,  and  went  to  reside  with  defendant    The  father  sued  be- 


_".).]  M'K    op    A 

The  unlawful  seizure  of  goods  is  a  trespass  within  the  meaning  of 
the  statute,  and  an  action  fur  damages  based  on  such  unlawful 
ure  may  !>«•  brought  in  the  county  in  which  the  seizure  occurred, 
either  by  an  assignee  for  creditors  who  had  title  and  right  to  pos- 

ion  or  by  his  successor  in  the  trust.1 

A  plaintiff  cannot  bring  suit  for  damages  on  account  of  a  mali- 
iion  in  the  county  wherein  he  was  arrested,  when  the 
•'•ution  was  beirun  in  another  county,  and  where  the  defendant 
the  proee.-dinos  attending  the  prosecution  being  regular, 
cution  is  begun  at  the  instance  of  an  individual,  the 
initial  step  is  the  affidavit  upon  which  the  warrant  for  arrest  issues. 
•e,  in  a  suit  for  malicious  prosecution,  the  "offense,"  in  contem- 
plation of  the  exception,  is  not  the  arrest,  but  the  making  of  the 
affidavit  and  causing  the  warrant  to  issue.     The  county  in  which 
this  is  done  determines  jurisdiction.     Under  a  warrant  legally  is- 
sued, an  officer  can  commit  no  trespass  by  executing  it  according 
to  its  command:  if  it  be  illegal, or  issued  without  authority  of  law, 
he  becomes  a  trespasser  when  executing  it.2 

fore  a  justice  for  the  value  of  his  son's  services,  alleging  that  the  defendant  en- 
ticed his  son  away.  The  evidence  showed  that  the  boy  left  home  voluntarily, 
ami  that  defendant  persuaded  him  to  remain  with  him,  and  it  was  held  that 
suit  should  have  been  brought  in  the  justice  precinct  in  which  defendant  re- 
L  Bracken  v.  Johnson,  24  S.  W.  Rep.  1101. 

Damage  caused  by  fire  escaping  from  the  engines  of  a  railroad  company  may 
be  sued  for  in  the  county  in  which  the  injury  occurred.  H.  &  T.  C.  Ry.  Co.  v. 
M.  Donough.  1  App.  C.  C.";i  «5t. 

When  suit  is  brought  against  the  obligors  in  a  bond  for  breach  of  contract, 

and  the  Im-aeh  resulted  from  an  act  of  the  agent  of  the  obligors  which  was  in 

i  criin.-.  '{inrre,  whether  the  fact  would  authorize  the  bringing  of  the  suit 

in  the  county  in  which  the  crime  was  committed,  but  in  which  none  of  the  par- 

!--<ided.    McRea  v.  McWilliams,  58  T.  328. 

i-pli.'d  t"  B.,  who  was  the  agent  of  C.,  for  a  loan,  offering  to  sell  a  note. 
B.  and  c'.  lived  in  different  counties.  The  matter  was  presented  to  C.,  who  took 
the  note,  and  directed  B.,  the  agent*  to  pay  over  money  in  his  possession,  which 
he  failed  to  do.  A.  sued  both  R  and  C.  to  recover  the  money,  and  it  was  held 
that  if  B.  was  guilty  of  embezzlement,  it  was  not  the  money  of  A.  that  he  em- 
bezzled, and  therefore  the  case  was  not  one  which  could  be  brought  in  the 
county  in  which  the  agent  resided,  on  the  ground  that  the  crime,  if  any,  was 
committed  tin-re.  Mathonican  v.  Scott,  8?  T.  396  (28  S.  W.  Rep.  1063). 

i  Perry  v.  Stephens,  77  T.  246  (13  S.  W.  Rep.  984).    A  sheriff,  at  the  instance  of 
the  plaintiffs  in  an  execution  upon  a  judgment  which  had  been  satisfied,  seized 
and  sold  a  stock  of  goods  in  the  possession  of  a  third  party.    Suit  was  brought 
in  the  comity  where  the  goods  were  seized  against  the  sheriff  and  the  plaintiffs 
in  the  execution,  the  latter  residing  in  another  county.     The  defendants  j.|. 
to  the  merits,  ami  the  plaintiffs  dismissed  as  to  the  sheriff.     On  except;, 
the  remaining  defendants  tliat  the  suit  should  abate  l.y  reason  of  their  ri^lit  to 
be  sued  in  the  ea>e  ,>nly  jn  the  county  of  their  i  it  was  held  that  the 

•venue  as  to  all  the  defendants  wa<  in  the  county  of  the  seizure  and  conversion. 
Willis  v.  Hu.Kon.  7'J  T.  .V.i*  ,111  S.  W.  Hep.  7 

JHubbard  v.  Lord,  59  T.  :{S4:  Milliard  v.  Wilson,  65  T.  288. 


264:  VENUE   OF    ACTIONS.  [§  23CL 

A  suit  for  damages  for  a  wrongful  attachment,  or  for  the  seizure 
of  property  not  subject  to  attachment,  may  be  brought  under  the 
provision  under  consideration,  and  prior  to  the  adoption  of  the  act 
of  1889,1  such  suits  were  brought  under  this  exception.2  Ordinarily, 
however,  the  action  could  only  be  brought  in  the  county  in  which 
the  actual  trespass  (the  levy  and  seizure)  was  committed,  though 
the  rule  was  relaxed  in  some  cases.  There  is  some  obscurity,  how- 
ever which  may  have  given  occasion  for  the  act  of  1889.8 
.  An  action  for  damages  caused  to  land  and  the  improvements 
thereon,  situate  on  the  south  bank  of  the  Rio  Grande  river,  in  Mex- 
ico, by  obstructions  placed  in  the  bed  of  the  river  on  the  Texas  side, 
in  the  county  of  Cameron,  may  be  brought  under  this  exception.4 

A  railroad  company  mciy  be  sued  in  any  county  in  which  its 
agents  have  committed  a  trespass.5 

§  230.  Wrongful  attachment  or  sequestration. 

Any  suit  for  damages  growing  out  of  the  suing  out  of  any  writ 
of  attachment  or  sequestration,  or  for  the  levy  of  any  such  writ,, 
may  be  brought  in  any  county  from  which  such  writ  was  issued,  or 
in  any  county  where  such  levy  was  made,  in  whole  or  in  part,, 
within  this  state.6 

Actions  for  wrongful  attachment  were  formerly  brought  under 
the  exception  relating  to  crime,  offense  or  trespass,  and  it  is  prob- 
ably not  material  now  which  provision  is  invoked  to  maintain  the 
venue,7  though  in  Baines  v.  Jemison 8  the  suit  was  brought  in  the 
county  where  the  writ  was  levied,  and  complaint  was  made  that 
the  court  charged  the  law  as  it  was  when  the  suit  was  commenced, 

i  R.  S.  1194,  exception  8.    See  §  230,  infra. 

*Cahn  v.  Bonnett,  62  T.  674;  Billiard  v.  Wilson,  65  T.  286;  Willis  v.  McNatt, 
75  T.  69  (12  S.  W.  Rep.  478):  Focke  v.  Blum,  82  T.  436  (17  S.  W.  Rep.  770).  An 
action  for  wrongful  attachment  may  be  brought  under  the  exception  under  con- 
sideration in  the  county  in  which  the  writ  was  levied.  Willis  v.  McNatt,  75  T. 
69  (12  S.  W.  Rep.  478).  Where  the  officer  to  whom  a  writ  of  attachment  is  di- 
rected, overstepping  the  bounds  of  discretion  allowed  him  by  the  writ,  makes 
use  of  it  to  wrongfully  and  unnecessarily  oppress  and  injure  the  defendant,  he 
commits  a  trespass,  for  which  a  civil  action  will  lie  against  him;  and  if  the 
plaintiff  in  attachment  instigates  or  countenances  such  wrong  and  oppression, 
he  becomes  a  participant  in  the  trespass,  and  is  liable  to  a  suit,  either  in  the 
county  of  his  residence,  or  in  that  in  which  the  attachment  proceedings  were 
commenced,  or  in  the  county  in  which  the  trespass  by  the  officer  was  committed. 
Any  expressions  found  in  Cahn  v.  Bonnett,  62  T.  674,  or  in  any  other  cases  in 
the  Texas  Reports,  inconsistent  with  the  foregoing  rule,  will  not  hereafter  be  re- 
garded as  authoritative.  Billiard  v.  Wilson,  65  T.  286. 

'Focke  v.  Blum,  82  T.  436  (17  S.  W.  Rep.  770);  Billiard  v.  Wilson,  65  T.  286. 

4  Armendiaz  v.  Stillman,  54  T.  623. 

6  Bartee  v.  B.  &  T.  C.  Ry.  Co.,  36  T.  648. 

6  Acts  1889.  p.  48;  R.  S.  1194,  exception  8. 

7  Focke  v.  Blum,  82  T.  436  (17  S.  W.  Rep.  770). 
«86T.  118(238.  W.  Rep.  639). 


§§  231-233.]  VENUE    OF   ACTIONS.  2»i.> 

ignoring  this  provision,  and  it  was  decided  that  the  provision  was 
not  applicable  to  suits  begun  before  its  enactment.  The  suit  was 
for  the  wrongful  issuance  of  an  attachment,  and  the  wrongful  and 
illegal  levy  thereof,  and  it  is  not  apparent  from  the  opinion  what 
benefit  the  complaining  party  expected  to  derive  from  having  one 
provision  charged  rather  than  the  other. 

The  levy  by  actual  seizure  of  personal  property  not  subject  to 

the  writ  of  attachment  under  which  the  seizure  was  made  is  a  tres- 

and  plaintiffs  causing  the  seizure  are  the  participants  in  the 

trespass,  and  the  venue  as  to  them,  when  sued  for  the  wrongful 

seizure,  lies  in  the  county  where  it  was  committed.1 

§  281.  Suits  for  recovery  of  personal  property. 

Where  the  suit  is  for  the  recovery  of  any  personal  property  it 
may  be  brought  in  any  county  in  which  the  property  may  be,  or  in 
which  the  defendant  resides.2 

§  232.  Concerning  inheritances. 

Where  the  defendant  has  inherited  an  estate,  concerning  which 
the  suit  is  commenced,  the  suit  may  be  brought  in  the  county  where 
such  estate  principally  lies.3 

§  233.  Foreclosure  of  mortgage  or  lien. 

Where  the  suit  is  for  the  foreclosure  of  a  mortgage  or  other  lien, 
it  may  be  brought  in  the  county  in  which  the  property  subject  to 
such  lien  or  a  portion  thereof  may  be  situated.4  This  is  the  act  of 
1846,  amended  in  1863  by  adding  the  words  "or  lion."3  The  word- 
ing has  been  changed  since,  but  the  meaning  has  not  been  changed. 
As  the  exception  now  stands,  a  suit  to  foreclose  a  vendor's  lien  may 
be  brought  in  the  county  in  which  the  land  lies;6  otherwise,  how- 
ever, prior  to  the  amendment.7  It  has  been  held  that  the  foreclosure 
of  the  mortgage  or  other  lien  must  be  the  specific  object  of  the 
suit;  and  that  where  mortgaged  land  is  sold,  and  the  purchaser  as- 
sumes the  debt,  an  action  against  him  alone  to  recover  a  general 
judgment,  and  also  to  foreclose  the  mortgage,  must  be  brought  in 
tin'  county  of  his  domicile.8 

Where  a  judgment  foreclosing  a  lien  is  obtained  and  the  land  is 
sold,  and  a  resident  of  a  county  other  than  that  in  which  the  judg- 

« Focke  v.  Blum,  82  T.  436  (17  a  W.  Rep.  770),  citing  R.  a  (1879)  1198;  Gen. 
Laws,  21st  !,«••,'..  p.  48,  and  20th  Leg.,  p.  49. 
JR.a  1198,  exception  10. 
»  R.  a  1198.  exception  11. 
«RS.  1194,  exception  12. 

»P.  D.,  art.  1423,  note:  Hays  v.  Stone,  36  T.  181. 
•Hays  v.  Stone.  36  T.  181:  Joiner  v.  Perkins,  59  T.  300. 
'Coffee  v.  Hays,  24  T.  190. 
"Higgins  v.  Frederick,  32  T.  282;  Skaggs  v.  Murchison,  63  T.  848. 


266  VENUE   OF   ACTIONS.  [§  234. 

inent  was  had  becomes  the  purchaser,  proceedings  to  set  aside  the 
sale  and  to  order  a  resale  may  be  had  in  the  court  in  which  the 
judgment  was  recovered,  on  notice  to  the  purchaser.  The  purchaser 
submits  himself  to  the  jurisdiction  of  the  court  by  becoming  a  pur- 
chaser. And  it  is  held,  also,  that  statutes  in  relation  to  venue  have 
reference  to  original  actions,  and  not  to  such  auxiliary  proceedings 
as  are  involved  in  the  exercise  of  jurisdiction  in  cases  over  which  it 
has  already  vested.1 

The  exception  under  consideration  is  for  the  benefit  of  the  plaint- 
iff, and  the  defendant  cannot  complain  if  the  suit  be  brought  in  the 
county  of  his  residence.2 

g  234.  Suits  for  partition. 

Suits  for  the  partition  of  lands  or  other  property  may  be  brought 
in  the  county  in  which  such  lands  or  other  property,  or  a  part 
thereof,  may  be,  or  in  the  county  in  which  one  or  more  of  the  de- 
fendants reside.3  The  statute  on  the  subject  of  partition  between 
joint  owners  provides  that  "  such  joint  owner  or  claimant  may  file 
his  petition  in  the  district  court  of  the  county  in  which  the  real  es- 
tate sought  to  be  partitioned,  or  a  portion  thereof,  is  situated."  4 
It  will  be  noticed  that  the  provision  is  permissive,  not  mandatory, 
and  there  is,  therefore,  no  conflict  by  reason  of  the  omission  of  the 
clause  of  the  first  provision  which  permits  the  suit  to  be  brought  in 
the  county  where  one  or  more  of  the  defendants  reside.  The  two 
provisions  can  also  stand  together,  notwithstanding  the  provision 
that  "  "Whenever  in  any  law  authorizing  or  regulating  any  particu- 
lar character  of  action  the  venue  is  expressly  prescribed,  the  suit 
shall  be  commenced  in  the  county  to  which  jurisdiction  may  be  so 
•expressly  given." 5 

Suit  for  the  partition  of  land  may  be  maintained  in  any  county 
in  which  a  portion  of  it  is  situate ;  and  when  the  action  is  brought 
in  the  district  court  for  the  partition  of  an  estate,  it  may  be  main- 
tained in  any  county  in  which  any  of  the  land  is  located.6  One  or 
more  of  several  defendant  tenants  in  common  must  reside  in  the 
county  in  which  a  suit  to  partition  land  is  brought  in  order  to  give  the 
court  jurisdiction,  if  the  land  be  situated  in  other  counties,  though 

1  Hansbro  v.  Blum,  3  Civ.  App.  108  (22  S.  W.  Rep.  270). 

2Kinney  v.  McCleod,  9  T.  78.  In  a  suit  for  the  foreclosure  of  a  mortgage  on 
real  estate,  the  defendant  having  demurred,  and  it  being  apparent  on  the  face 
of  the  record  that  the  defendant  resided,  and  the  land  was  situate,  in  a  different 
county  than  that  in  which  the  suit  was  brought,  the  supreme  court,  although 
no  errors  were  assigned,  took  cognizance  of  the  want  of  jurisdiction  in  the  court 
below,  and  dismissed  the  cause.  Shropshire  v.  Dunson,  32  T.  467. 

»R  S.  1194,  exception  ia 

4  R  S.  3607. 

»R.S.  1194,  exception  27. 

«Carro  v.  Carro,  60  T.  395;  Osborn  v.  Osborn,  62  T.  495. 


;5.]  -IK  OF  Acn< 

such  residence  will  not  confer  jurisdiction  to  partition  an  entire  es- 
tate, consisting  of  several  tracts  of  land,  if  the  defendant  residing 
at  the  venue  of  the  suit  has  transferred  his  interest  as  joint  tenant 
in  one  tract  to  a  non-resident  purchaser.  So  where  suit  was 
brought  .lu.iinst  several  defendants,  in  a  county  in.  which  one  of 
them  re-sidcd.  to  partition  separate  tracts  of  land  lying  in  other  and 
separate  counties,  and  the  one  defendant  residing  in  the  county 
where  the  suit  was  brought  had  no  interest  in  one  of  the  ti 
it  was  held  that  the  court  had  no  jurisdiction  to  partition  such 
tract.1 

If  in  the  petition  it  be  shown  that  the  defendants  assert  an  ad- 
verse title,  and  there  be  a  prayer  for  the  recovery  of  title,  the  suit 
must  be  brought  in  the  county  where  the  land  is  situated.  Thus, 
where  plaintiffs  in  their  pleadings  aver  their  former  possession  and 
r  by  the  defendants,  and  that  defendants  set  up  adverse  title 
to  the  whole  tract  of  land,  and  pray  for  partition,  and  also  for  the 
recovery  of  the  title  and  possession,  and  for  a  writ  of  possession 
and  damages,  the  suit  is  primarily  one  of  trespass  to  try  title,  and 
the  question  of  partition  is  only  incidental.2 

?  235.  Suits  concerning  lands. 

Suits  for  the  recovery  of  lands  or  damages  thereto,  suits  to  re- 
move incumbrances  upon  the  title  to  land,  suits  to  quiet  the  title  to 
land,  and  suits  to  prevent  or  stay  waste  on  lands,  must  be  brought 
in  the  county  in  which  the  land  or  a  part  thereof  may  lie.'  The 
provision  in  Paschal's  Digest  specifies  "cases  where  the  recovery  of 
land,  or  damages  thereto,  is  the  object  of  a  suit."  The  act  of  1836 
-e  where  land  is  the  object  of  the  suit."4 

This  provision  is  imperative,  and  leaves  the  plaintiff  no  discretion 
in  the  choice  of  a  tribunal,  if  the  defendant  objects.  The  action 
-m '/.-/,  in  the  cases  specified,  be  brought  in  the  county  in  which  the 

i  Peterson  v.  Fowler.  7  'IS.  W.  Rep.  534). 

irk  v.  Burr,  56  T.  130;  Peterson  v.  Fowler,  73  T.  524  (US.  W.  Rep.  534). 
Suit  was  brought  in  Hopkins  county  l.y  Nunn  against  Morns,  who  resided  in 
Wood  county,  for  partition  of  a  partnership  farm  owned  by  the  parties  ami  for 
a  money  claim  owing  plaintiff  upon  the  settlement  of  their  firm  matters.  The 
venue  of  the  suit  for  partition  was  in  Hopkins  county,  and  the  court  also  had 
uction  t<>  determine  the  question  of  the  indebtedness  claimed  and  to  ad- 
judge it  a  lien  upon  the  interest  of  the  defendant  in  the  land.  Morris  v.  Nunn, 
7'.'  T.  125  (15  S.  W.  Rep.  22ui.  Suit  was  brought  for  partition  of  land  in  which 
plaintiff  claimed  an  equitable  interest,  and  for  specific  performance  of  the  con- 
tract by  defendant  to  convey  a  part  of  the  land  to  plaintiff.  For  the  purpose  of 
trying  title  and  partitioning  the  land  it  was  held  that  the  court  of  the  county 
in  which  the  land  lay  had  jurisdiction,  the  defendant  residing  in  another  county. 
•  ell  v.  Linthecum,  11  S.  W.  Rep.  1092. 

'R.S.  1194,  exception  14. 

«P.  D.,  art.  1423,  and  note. 


268  VENUE   OF   ACTIONS.  [§  235. 

land  or  a  part  thereof  may  lie.1  An  exception,  however,  is  made 
in  case  of  a  trespass  committed  in  a  county  in  Texas  which  results 
in  damage  to  land  in  Mexico*.  It  is  held  that  an  action  for  dam- 

o 

ages  in  such  case  may  be  brought  in  the  county  in  which  the  de- 
fendant resides,  under  the  general  provision  relating  to  venue,  or  in 
the  county  in  which  the  trespass  was  committed,  under  the  excep- 
tion relating  to  crime,  offense  or  trespass.2  It  is  held  also  that  the 
statute  confers  a  mere  personal  privilege  which  may  be  waived  by 
the  defendant,  and  the  judgment  of  a  district  court  of  some  other 
county  whose  jurisdiction  has  been  submitted  to  without  question 
will  settle  the  title  to  the  land  as  effectually  as  if  suit  had  been 
brought  in  the  county  in  which  the  land  is  situate.3 

•  • 

A  suit  for  the  recovery  of  land,  as  used  in  the  statute,  means  an 
action  of  ejectment,  trespass  to  try  title,  or  suit  to  recover  the  land 
itself.  The  "  recovery  of  land  "  has  reference  to  the  possession,  and 
"  damages  thereto  "  has  reference  to  an  injury  to  the  possession  or  to 
the  freehold  or  estate.4  In  a  legal  sense,  the  word  "  incumbrance  " 
means  an  estate,  interest  or  right  in  lands,  diminishing  their  value 
to  the  general  owner;  a  paramount  right  in,  or  weight  upon,  land 
which  may  lessen  its  value.  Under  the  law  in  force  prior  to  the 
Revised  Statutes  no  suits  affecting  the  right  to  land  were  required 
to  be  brought  in  the  county  where  the  land  was  situated  except 
such  as  could  be  maintained  as  actions  of  trespass  to  try  title.  The 
intention  of  the  legislature  since,  in  increasing  the  classes  of  suits 
affecting  the  right  to  land  which  should  be  brought  in  the  county 
where  the  land  was  situated,  has  been  to  provide  the  venue  in  all 
cases  in  which  the  title  to  land  should  be  in  controversy.  Under 
the  former  law  the  action  of  trespass  to  try  title  could  be  main- 
tained to  enforce  the  right  acquired  by  locations  upon  land  ;•  but 
under  the  Revised  Statutes  that  action  can  be  maintained  upon  no 
right  lower  than  that  acquired  by  location  and  survey.  There  is 
nothing  in  the  nature  of  the  right  secured  by  the  location  of  a  valid 
land  certificate  which  would  require  it  to  be  adjudicated  in  a  county 
other  than  that  in  which  the  land  is  situated,  when  the  same  right 
advanced  one  degree  by  the  ministerial  act  of  the  surveyor  must 
be  there  adjudicated,  unless  the  right  so  to  have  it  be  waived  by  a 
defendant.  Considered  technically,  a  suit  to  quiet  title,  except  in 
those  cases  in  which  it  is  permitted  to  establish  a  right  between  one 
person  and  many  others  claiming  distinct  and  individual  interests,  is 
limited  to  cases  in  which  a  person  in  possession  seeks  relief  against 

'Stark  v.  Burr,  56  T.  130;   Peterson  v.  Fowler,  73  T.  524  (11  S.  W.  Rep.  534); 
McDonald  v.  Alford,  32  T.  35. 
s  Armendiaz  v.  Stillman,  54  T.  623. 

»De  La  Vega  v.  League,  64  T.  205:  Morris  v.  Runnells,  12  T.  176. 
<  Miller  v.  Rusk,  17  T.  171. 


§  235.]  M  i:   0V    AC;  !•  269 

one  who  has  repeatedly  mid  without  success  sought  to  obtain  pos- 
>n  liv  the  common-law  action  of  ejectment.  But  the  suits  to 
quiet  title  contemplated  by  the  statute  are  of  broader  purpose,  em- 
l»ra<-in<:  suits  founded  even  on  equitable  titles  instituted  to  remove 
cloud  from  such  title,  and  suits  necessary,  as  occasion  may  require 
it,  to  enable  the  holder  of  the  feeblest  equity  to  remove  from  his 
way  to  leiral  title  any  unlawful  hindrance  having  the  appearance 
of  better  right. 

The  rules  of  equity,  that  one  will  not  be  quieted  in  his  title  until  ho 
has  established  it  at  law,  and  that  one  not  in  possession  cannot  main- 
tain an  action  to  remove  cloud  from  his  title,  can  have  no  applica- 
tion in  the  courts  of  this  state,  which  in  the  same  action  may  deter- 
mine the  right,  be  it  legal  or  equitable,  and  give  such  relief  as  the 
nature  of  the  case  may  require.  It  has  at  all  times  been  held  that 
the  title  between  adverse  litigants  should  be  settled  in  the  county 
w  1  K  >re  the  land  is  situated.1  The  county  surveyor  is  not  exempt  from 
the  general  rule  which  permits  all  persons  to  be  made  parties  to  a 
suit  who  are  necessary  to  a  complete  determination  of  the  contested 
right  and  to  the  granting  of  the  full  relief  to  which  the  holder  may 
be  entitled.  Under  this  rule,  if  the  jurisdiction  is  properly  invoked 
at  the  place  where  the  suit  is  brought,  by  reason  of  the  subject- 
matter  of  the  action,  it  is  immaterial  that  some  of  the  parties  neces- 
sary to  full  relief  may  not  be  resident  in  the  county  in  which  the 

ion  is  brought.'-' 

Before  the  amendment  of  the  exception  relating  to  suits  against 
executors,  administrators  and  guardians,  the  tendency  of  the  decis- 
ions was  to  the  effect  that  that  exception  was  controlling — that 
the  provision  now  under  consideration  was  subordinate  to  that  one.3 
Now,  however,  that  exception  specifies  such  actions  only  as  may  be 
brought  to  establish  a  money  demand.  When  a  petition  having  for 
its  object  the  recovery  of  land  alleges  facts  which  if  true  show  that 
the  plaintitl'  has  the  superior  title,  and  is  indorsed  as  required  in  the, 
action  of  trespass  to  try  title,  the  proper  jurisdiction  is  in  the  county 
u  lirre  the  land  is  situated,  without  reference  to  places  of  residence 
of  the  respective  parties.4  The  venue  of  a  suit  for  the  recover 
land  or  for  partition  of  land  lies  where  the  land  is  situated.  This 

1  Tabor  v.  Commissioner,  29  T.  508;  Commissioner  v.  Smith.  5  T.  171. 

-  Thompson  v.  Locke,  66  T.  383  (1  S.  W.  Rep.  112).  The  venue  of  a  suit  against 
a  surveyor  to  compel  the  performance  of  an  official  duty  is  in  the  county  of  the 
Mirvt.yor's  resi'dence.  The  fact  that  others  who  are  made  parties  defendant  as- 
sert an  adverse  interest  in  the  land  will  not  constitute  the  proceeding  such  ;i 
suit  involving  title  to  land  as  to  require  or  authorize  its  institution  in  the  county 
u-h.-iv  the  land  is  sitn.it.  I .  x.  Mex.  Ry.  Co.  v.  Locke,  63  T.  623. 

II  v.  Owen,  3  T.  345;  Finch  v.  K.lmondson.O  T.  604;  Vandever  v.  Freeman, 

m 

«  Bender  v.  Damon,  72  T.  92  (9  a  W.  Rep.  747). 


VENUE    OF   ACTIONS.  [§  235, 

rule  applies  where  two  tracts  are  involved  and  one  lies  partly  out- 
side the  county  where  suit  is  brought.1 

In  a  suit  to  remove  cloud  from  title,  brought  in  a  county  within 
which  none  of  the  land  is  situated,  a  plea  in  abatement  filed  in 
proper  time  and  manner  objecting  to  the  venue  should  be  sus- 
tained. A  plea  by  any  one  necessary  defendant  is  sufficient.2 

An  action  of  trespass  to  try  title  against  a  railroad  company 
must  be  brought  in  the  county  in  which  the  land  lies.  Section  2& 
of  article  1194,  providing  that  suits  against  a  railroad  corporation 
may  be  brought  in  any  county  through  or  into  which  the  railroad 
extends  or  is  operated,  is  subordinate.3 

A  suit  for  specific  performance  ought  to  be  brought  in  the  county 
in  which  defendant  resides.4  But  where  B.  was  in  possession  of 
the  land  sued  for,  holding  under  a  deed,  but  the  legal  title  was  in 
"W".,  who  resided  in  a  different  county,  the  suit  was  properly 
brought  in  the  county  where  the  land  was  situated,  and  the  plaint- 
iff had  the  right  to  join  W.,  so  as  to  obtain  specific  performance 
against  him  should  he  recover  against  B.5 

An  action  for  the  rescission  of  an  executed  contract  for  the  sale 
of  land  is  not  an  action  for  the  recovery  of  land  or  for  damages 
thereto,  although  the  petition  be  indorsed  with  a  notice  that  the 
action  is  brought  as  well  to  try  title  as  for  damages,  and  is  prop- 
erly brought  in  the  county  where  the  defendant  resides.6  A  bill 

1  Murrell  v.  Wright,  78  T.  519  (15  S.  W.  Rep.  156).    It  is  held  that  suit  may  be 
brought  in  any  county  where  part  of  the  land  lies,  although  the  part  which  the 
adverse  party  claims  lies  wholly  in  another  county.     Ryan  v.  Jackson,  11  T.  391. 
An  action  of  trespass  to  try  title,  by  tenants  in  common  in  two  tracts  of  land 
located  under  one  land  certificate,  but  in  different  counties,  and  against  heirs 
of  the  grantee  of  the  certificate,  can  be  maintained  for  both  tracts,  there  being 
no  plea  in  abatement  nor  special  exceptions  as  to  the  tract  of  land  lying  in  the 
county  other  than  that  in  which  suit  is  brought.    Tevis  v.  Armstrong,  71  T.  59 
(9  S.  W.  Rep.  134). 

2  Russell  v.  Railway  Co.,  68  T.  64C  (5  S.  W.  Rep.  686). 

3  Ft  W.  &  D.  C.  Ry.  Co.  v.  Jenkins,  29  S.  W.  Rep.  1113. 

«  Miller  v.  Rusk,  17  T.  170;  Hearst  v.  Kuykendall,  16  T.  327.  And  see  Durst  v. 
Smith,  11  T.  273. 

8  Herrington  v.  Williams,  31  T.  448.  The  petition  set  up  facts  entitling  plaint- 
iffs to  specific  performance  of  a  contract  for  sale  of  certain  lands  situated  in 
the  county  where  suit  was  brought.  These  allegations  were  followed  by  alle- 
gations as  in  an  action  of  trespass  to  try  title  for  the  same  land.  The  defend- 
ant resided  in  another  county.  It  was  held:  (1)  The  character  of  the  suit  is 
determined  by  the  specific  facts  alleged,  and  the  general  allegations  are  sub- 
ordinate thereto,  for  which  reason  the  suit  must  be  deemed  oqe  for  specific 
performance.  v2)  No  agreement  that  the  contract  should  be  performed  in  the 
county  where  suit  was  brought  being  alleged,  the  venue  could  not  be  sustained 
on  ground  that  the  action  is  for  the  recovery  of  land.  Cavin  v.  Hill,  83  T.  73 
(18  S.  W.  Rep.  323). 

6  Morris  v.  Runnells,  12  T.  175.  Plaintiff  alleged  a  contract  with  defendant 
under  which  lie,  plaintiff,  had  the  exclusive  right  to  enter  upon  certain  land 
and  quarry  and  remove  stone  therefrom;  also,  that  defendant,  in  violation  of 


17.]  OF   ACTI. 

to  procure  the  cancellation  of  a  deed  alleged  to  have  been  made  in 
fraud  of  creditors  is  properly  brought  in  the  county  of  defendant's 
residence.1 

§  236.  Breach  of  warranty  of  title. 

In  breach  of  warranty  of  title  to  lands,  where  the  vendors  liable 
thereon  live  in  different  counties,  the  plaintiff  may  bring  his  action 
in  any  county  where  either  of  such  vendors  resides,  and  join  all 
other  vendors  in  one  and  the  same  suit.2 

The  plaintiff  is  not  required  to  make  all  vendors  parties,  but  he 
may  sue  them  all  in  the  county  of  the  residence  of  any  one  liable 
on  the  warranty,  and  the  court  will  have  jurisdiction  over  the  per- 
sons of  all  the  other  vendors,  without  reference  to  residence.  A 
suit  against  two  warrantors  in  the  chain  of  title  was  held  properly 
brought  in  the  county  of  the  residence  of  the  one  who  was  alleged 
to  be  a  remote  warrantor.' 

§  237.  Suits  for  divorce. 

Suits  for  divorce  from  the  bonds  of  matrimony  must  be  brought  in 
the  county  in  which  the  plaintiff,  whether  husband  or  wife,  shall 
have  resided  for  six  months  next  preceding  the  bringing  of  the  suit.4 

No  suit  for  divorce  from  the  bonds  of  matrimony  can  be  main- 
tained, unless  the  petitioner  shall,  at  the  time  of  exhibiting  his  or 
her  petition,  be  an  actual  bonajide  inhabitant  of  the  state,  and  shall 
have  resided  in  the  county  where  the  suit  is  filed  six  months  next 
preceding  such  filing.* 

An  allegation  that  plaintiff  "is  a  bona  fide  citizen  of  the  county 
of  Bell,  State  of  Texas,  and  has  been  for  more  than  six  months  be- 
fore the  tiling  of  this  petition,"  is  not  the  equivalent  of  the  provision 
that  the  petitioner  "shall  at  the  time  of  exhibiting  his  petition  be 
an  actual  l»>,t,i  p',1.  inhabitant  of  the  state,  and  shall  have  resided  in 
the  county  where  the  sait  is  filed  six  months  next  preceding  the  fil- 
ing of  the  suit,"  and  a  demurrer  should  have  been  sustained  to  it. 
actual  inhabitancy  as  required  by  the  statute  was  not  shoun 

the  contract,  had  entered  upon  the  land,  dispossessed  plaintiff,  and  was  remov- 
ing stone  and  converting  it  to  his  own  use.    A  writ  of  injunction  was  prayed 
•.straining  defendant  from  removing  stone,  and  for  the  value  of  stone  re- 
i.     It  was  held  that  the  statute  did  not  rf<|uiiv  such  action  to  1»>  brought 
in  the  county  in  which  the  land  was  situated.     It  was  not  a  suit  l»r  tin-  recov- 
f  land,  nor  for  damages  thereto.nor  to  remove  an  incmnbr.-incc.  nor  to 
•  luii-t  title,  nor  to  prevent  or  stay  waste,    O'Connor  v.  Shannon,  30  S,  W.  Rep. 
1096. 

•Lehmberg  v.  Biberstein,  51  T.  4 
*R  a  1194.  exception  15;  Acts  1887,  p.  69. 
1  Can-others  v.  Jolm-m,  4  Aj.p.  C, 
« R  S.  1194,  exception  16. 
*RS.2978. 


VENUE   OF   ACTIONS,  [§  238. 

when  it  appeared  that  in  1881  plaintiff  left  his  home  and  family  in 
Bell  county,  Texas,  and  resided  in  Central  America  from  1881  to 
December,  1885,  and  again  from  January,  1886,  to  October,  1887, 
the  suit  having  been  filed  October  10,  1887.  A  temporary  absence 
from  the  state  or  county  of  an  inhabitant  of  the  state  during  the 
six  months  next  preceding  the  filing  of  his  suit  would  not  affect  his 
right  to  maintain  such  suit.  When  residence  in  the  county  for 
six  months  before  the  suit  is  negatived,  a  divorce  should  be  re- 
fused.1 

Where  the  petition  is  by  the  wife,  who  alleges  that  she  is  a  bona 
fide  inhabitant  of  the  county  in  which  the  suit  is  brought,  and  has 
been  so  continuously  for  six  months  before  the  commencement  of 
the  suit,  it  is  held  that  the  bona  fides  of  her  residence  depends  upon 
whether  she  had  sufficient  grounds  for  leaving  her  husband,  and  has 
taken  up  her  residence  in  the  county  named,  not  solely  for  the  pur- 
pose of  suing  her  husband  for  a  divorce,  but  with  the  intention  of 
making  that  county  her  permanent  residence.  The  necessary  facts 
being  fully  stated,  the  court  has  jurisdiction  of  the  case  without  re- 
gard to  the  place  where  the  offenses  for  which  the  divorce  is  sought 
were  committed.2 

§  238.  Enjoining  judgment,  etc. 

When  the  suit  is  brought  to  enjoin  the  execution  of  a  judgment 
or  to  stay  proceedings  in  any  suit,  it  must  be  brought  in  the  county 
in  which  such  judgment  was  rendered  or  in  which  such  suit  is  pend- 
ing.3 

Another  statute  reads  as  follows:  Writs  of  injunction  granted 
to  stay  proceedings  in  a  suit,  or  execution  on  a  judgment,  are  re- 
turnable to  and  triable  in  the  court  where  such  suit  is  pending,  or 
such  judgment  was  rendered;  a  writ  of  injunction  for  other  causes, 
if  the  party  against  whom  it  is  granted  be  an  inhabitant  of  the  state, 
is  returnable  to  and  triable  in  the  district  or  county  court  of  the 
county  in  which  such  party  has  his  domicile,  according  as  the  amount 
or  matter  in  controversy  comes  within  the  jurisdiction  of  either  of 
said  courts.  If  there  be  more  than  one  party  against  whom  any 
writ  is  granted,  it  may  be  returned  and  tried  in  the  proper  court  of 
the  county  where  either  may  have  his  domicile. 4 

The  first  clause  of  the  preceding  article  is  said  to  be  imperative.5 
But  when  the  person  applying  for  the  injunction  is  not  a  party  to 

'Raymond  v.  Haymond,  74  T.  414  (12  S.  W.  Rep.  90). 

2  Jones  v.  Jones,  60  T.  451.  As  to  jurisdiction  to  decree  a  divorce  when  the 
defendant  is  a  non-resident,,  see  Tre vino  v.  Tre vino,  54  T.  261 ;  Stephens  v.  Stephens 
C^T.  337. 

3R.S.  1194,  exception  17. 

<  R.  S.  2996. 

*Hugo  v.  Dignowitty,  1  App.  C.  C.,  §  158;  Hendrick  v.  Cannon,  2  T.  259;  Win- 


:>.]  vKNfE  OK  I  273 


the  judgment  sought  to  be  enjoined,  he  may  resort  to  the  courts  of 
vii  county:  as,  in  a  case  where  goods  levied  upon  arc  claimed 
by  a  third  person,  and  he  seeks  to  enjoin  a  sale.1 

Where  the  execution  of  the  judgment  generally  is  sought  to  be 
prevented,  or  where  the  writ  is  granted  to  stay,  that  is,  to  stop,  the 
execution  of  a  judgment,  the  statute  is  imperative,  and  is  suscepti- 
ble of  but  one  construction  —  that  is,  that  the  writ  shall  be  returned 
or  the  suit  brought  in  the  county  where  the  judgment  was  rendered. 
But  the  law  requiring  a  suit  to  "enjoin  the  execution  of  a  judg- 
ment" to  be  brought  in  the  county  of  its  rendition  evidently  applies 
to  suits  attacking  the  judgment,  questioning  its  validity,  or  present- 
ing defenses  properly  connected  with  the  suit  in  which  it  was  ren- 
!  and  which  should  have  been  adjudicated  therein.  It  has  no 
application  to  parties  who  do  not  sue  to  stay  or  enjoin  the  execu- 
tion primarily  of  the  judgment  as  contemplated  by  the  statute,  but 
who  sue  to  prevent  the  sale  of  property  alleged  to  belong  to  them 
under  a  judgment,  however  valid  and  regular  it  may  be,  to  which 
they  are  not  parties  and  for  the  satisfaction  of  which  their  property 
could  in  no  event  be  subject.  Any  other  construction  of  the  stat- 
ute would,  where  an  execution  was  levied  upon  the  property  of  per- 
sons not  parties  to  the  judgment,  require  such  persons  to  adjudicate 
their  rights  to  the  same  in  a  county  not  that  of  their  domicile,  and 
thus  destroy  a  valuable  privilege.  Where  the  action  is  brought  to 
enjoin  a  sale  of  land,  it  may  be  brought  in  the  county  in  which  the 
land  lies.2 

£  239.  Judgments,  actions  on,  and  to  revive  or  vacate. 

A  proceeding  to  revive  a  judgment  by  wire  facias  is  not  a  new 
suit,  but  a  continuance  of  the  one  in  which  the  judgment  was  ob- 
tained, and  the  proper  venue  of  it  is  the  county  in  which  the  judg- 
ment was  rendered.3  In  an  action  of  debt  on  a  judgment,  the  same 
being  an  original  proceeding  and  not  a  mere  continuation  of  a  for- 
iner  suit,  the  proj>er  venue  is  the  county  of  defendant's  residence.4 

A  suit  fc>  vacate  a  judgment  and  set  aside  a  sale  of  land  there- 
under must  be  instituted  in  the  court  by  which  the  judgment  was 
rendered.  If  the  judgment  is  an  absolute  nullity  from  want  of  ju- 

nie  v.  Grayson,  3  T.  429;  Cook  v.  Baldridge,  39  T.  250;  George  v.  Dyer,  1  App. 

C.  G,  §  780. 

'  Brown  v.  Young,  1  App.  C.  C,  §  1241  :  Winnie  v.  Grayson,  3  T.  429. 

»  Van  Ratcliff  v.  Call,  73  T.  490  (10  a  W.  Rep.  578);  Hoggin  «  v.  White,  7  Civ. 
Apju  r>63  (27  S.  W.  Rep.  1006).  Suit  for  damages  upon  an  injunction  bond  may 
be  brought  in  a  county  in  which  reside  one  or  more  of  the  defendants,  although 
it  be  in  &  county  other  than  that  in  which  the  injunction  suit  was  tried.  Wood 
v.  Hollander,  84  T.  394  (19  S.  W.  Rep.  551). 

J  Ma.stf.r<nn  v.  Cundiff,  53  T.  472;  Perkins  v.  Hume,  10  T.  50;  Schmidtktf*V. 
Miller,  71  T.  10* 

*  Johnson  v.  .Skip-.vui  -th.  09  T.  473;  Townsend  v.  Smith,  20  T.  465. 
18 


274  VENUE   OF   ACTIONS.  [§§  240-243. 

risdiction,  suit  may  be  brought  in  the  county  where  the  land  is 
situated.1 

£  240.  Revising  proceedings  in  probate. 

Suits  to  revise  the  proceedings  of  the  county  court  in  matters  of 
probate  must  be  brought  in  the  district  court  of  the  county  in  which 
such  proceedings  were  had.2 

§  241.  Suit  against  a  county 

A  suit  against  a  county  must  be  commenced  in  some  court  of 
competent  jurisdiction  within  such  county.3 

§  242.  Mandamus  against  heads  of  departments. 

Suits  for  mandamus  against  the  heads  of  any  of  the  departments 
of  the  state  government  must  be  brought  in  the  district  court  of 
the  county  in  which  the  seat  of  government  may  be.4 

The  supreme  court  or  any  justice  thereof,  in  term  time  or  vaca- 
tion, may  issue  writs  of  quo  warranto  or  mandamus  against  any 
officer  of  the  state  government,  except  the  governor  of  the  state.5 
This  act  was  passed  pursuant  to  the  constitutional  amendment  of 
1891.8 

§  243.  Forfeiture  of  charters. 

Suits  in  behalf  of  the  state  for  the  forfeiture  of  the  charters  of 
private  corporations  chartered  by  act  of  the  legislature  must  be 
commenced  in  the  district  court  of  the  county  in  which  the  seat  of 
government  may  be.7 

The  act  of  1879  provides  that  "the  attorney-general,  or  district 
or  county  attorney,  of  the  proper  county  or  district,  .  .  .  may 
present  a  petition  to  the  district  court  of  the  proper  county,  or  any 
judge  thereof  in  vacation,  for  leave  to  file  an  information  in  the 
nature  of  a  quo  warranto" 8  etc.  The  section  in  which  this  is  found 
includes  proceedings  against  persons  usurping  or  unlawfully  exe- 
cuting an  office  as  well  as  proceedings  against  corporations,  and  the 
seventh  section  of  the  act  provides  that  in  cases  of  persons  illegally 
claiming  or  holding  any  state  office,  the  suit  shall  be  brought  in  the 
district  court  of  Travis  county.9 

1  Bender  v.  Damon,  72  T.  92  (9  8.  W.  Rep.  747). 

2  R  S.  1194,  exception  1& 
8  R  S.  1194,  exception  19. 
«  R  S.  1194,  exception  20. 
5RS.  946:  Acts  1892,  p.  19. 

6  Const.,  art  V,  §  3.    It  repeals  §  4  of  the  act  of  1881,  R  S.  4861,  or  at  least  the 
conflicting  parts. 

7  R  S.  1194,  exception  21. 
8RS.  4343. 
9RS.4349. 


45.]  >l'K    OF   ACTI' 

ProcLvdin.i:*  against  the  Texas  Trunk  Railway  Company  were 
commence*!  in  1^'.»  in  Ellis  county.1  Proceedings  purporting  to  be 
under  the  above  act  of  1879,  against  the  Jefferson  Iron  Company, 
were  brought  in  Marion  county. - 

§  244.  Suits  to  forfeit  railroad  lands. 

Suits  on  behalf  of  the  state  to  forfeit  land  fraudulently  or  color- 
ably  alienated  by  railway  companies  in  fraud  of  the  rights  of  the 
.  under  the  laws  granting  lands  to  railway  companies,  are 
brought  in  the  county  in  which  the  seat  of  government  may  be.J 

15.  Suits  against  private  corporations,  including  railroad  com- 
panies. 

Suits  against  any  private  corporation,  association  or  joint-stock 
company  may  be  commenced  in  any  county  in  which  the  cause  of 
action  or  a  part  thereof  arose,  or  in  which  such  corporation,  asso- 
ciation or  company  has  an  agency  or  representative,  or  in  which  its 
principal  office  is  situated.  Suits  against  a  railroad  corporation,  or 
a.irainst  any  assignee,  trustee  or  receiver,  operating  its  railway,  may 
'also  be  brought  in  any  county  through  or  into  which  the  railroad 
of  such  corporation  extends  or  is  operated.4 

Actions  for  damages  against  railroad  officials  for  making  false 
statements  for  the  purpose  of  securing  the  registration  of  any  bond 
or  other  evidence  of  debt,  under  the  act  of  1893,  must  be  brought 
in  either  of  the  district  courts  of  Travis  county,  or  in  the  county 
where  the  principal  office  of  the  railway  company  is  located.5 

An  action  for  damages  against  a  railroad  company  for  extortion 
and  discrimination,  under  the  act  of  1891,  may  be  brought  in  any 
court  of  competent  jurisdiction  in  any  county  into  or  through  which 
the  railroad  may  run ;  all  other  penalties  provided  for  in  said  act 
shall  be  sued  for,  in  the  name  of  the  state,  in  the  proper  court  hav- 
ing jurisdiction  thereof  in  Travis  county,  or  in  any  county  to  or 
through  which  the  railroad  may  run,  by  the  attorney-general,  or 
under  his  direction.' 

Suits  by  the  attorney-general  in  the  name  of  the  state  to  rec 
forfeitures  and  taxes  due  from  sleeping-,  palace-,  or  dining-car  c<>m 
juinies  may  be  brought  in  the  courts  of  Travis  county.7 

The  "cause  of  action,"  as  those  words  are  used  in  the  statute, 
consists  not  only  of  the  right  which  plaintiff  has,  but  of  the  injury 

'  Tex.  Trunk  Ry.  Co.  v.  State,  83  T.  1  (18  a  W.  Rep.  199). 
2  State  v.  Jefferson  Iron  Co.,  60  T.  812. 
•Const  1876,  art  XIV,  §  15;  R  S.  1194,  exception  22. 
*R  S.  1194,  exception  2a 

is  1893,  p.  56;  R  S.  4584Z. 
OR-  1877. 

-  130. 


\  i..\n:  OF  ACTIONS.  [§  245. 

thereto;  thus,  when  there  is  a  breach  of  contract  which  by  its  terms 
was  to  have  been  performed  in  any  particular  county,  a  cause  of 
action  arose  there,  and  the  defendant  can  sue  there.1  A  railroad 
company  is  a  private  corporation  within  the  meaning  of  the  stat- 
ute.2 A  suit  against  a  corporation  for  failure  to  sell  a  consignment 
of  wool  according  to  agreement  may  be  brought  in  the  county  in 
which  the  agreement  was  made.3 

An  action  was  brought  against  the  Gulf,  Colorado  and  Santa  Fe 
Kaihvay  Company  for  damages  for  loss  of  and  injury  to  baggage. 
Pending  suit  the  Missouri  Pacific  Kail  way  Company  was  brought 
in,  and  it  pleaded  that  it  did  not  operate  its  road  in  the  county  in 
which  the  suit  was  brought  and  had  no  agent  there.  It  was  held 
that  this  plea,  on  its  face,  was  sufficient;  that  the  fact  that  the  bag- 
gage had  been  checked  through  by  this  company  from  Waco  to 
Brenham  did  not  give  the  county  court  of  Washington  county  ju- 
risdiction over  the  company.4  Was  the  plea  in  fact  sufficient?  If 
the  company  received  and  checked  the  baggage  through  to  its  des- 
tination, might  it  not  also  have  been  liable  for  loss  or  damage  hap- 
pening in  a  county  through  which  its  road  was  not  operated,  and 
in  which  it  had  no  agency  —  the  county  in  which  the  cause  of  ac- 
tion arose, —  and  ought  not  the  plea  to  have  negatived  such  lia- 
bility?6 

The  statute  makes  no  distinction  as  to  the  character  of  actions 
against  railway  companies,  as  it  does  where  a  natural  person  is  de- 
fendant; and  a  suit  against  a  railway  company  for  an  injury  done 
to  one's  land  and  grass  by  fire  caused  by  negligence  of  the  company 
may  be  maintained  not  only  in  the  county  in  Avhich  the  cause  of 
action  arose,  but  in  any  county  through  or  into  which  the  company 
operates  its  road,  or  in  which  it  has  an  agency  or  in  which  its  prin- 
cipal office  is  situate.8  A  railroad  company  is  a  person,  within  the 
meaning  of  the  exception  in  relation  to  crime,  offense  or  trespass, 
and  may  be  sued  in  any  county  in  which  its  agents  have  committed 
a  trespass.7  And  in  a  suit  against  a  private  corporation  for  a  tres- 

1  H.  &  T.  C.  Ry.  Co.  v.  Hill,  63  T.  381. 

2  St.  L.  &  S.  F.  Ry.  Co.  v.  Traweek,  84  T.  65  (19  S.  W.  Rep.  370). 

3  Western  Wool  Commission  Co.  v.  Hart,  20  S.  W.  Rep.  131. 
<O.,  C.  &  S.  F.  Ry.  Co.  v.  Jackson,  4  App.  C.  C.,  §  47. 

»H.  &  T.  C.  Ry.  Co.  v.  Graves.  50  T.  181;  Breen  v.  T.  &  P.  Ry.  Co.,  44  T.  304. 

«G.,  H.  &  S.  A.  Ry.  Co.  v.  Home,  69  T.  643  (9  S.  W.  Rep.  440);  G.,  C.  &  S.  F.  Rv. 
Co.  v.  France.  2  App.  C.  C.,  §  701. 

7  Bartee  v.  H.  &  T.  C.  Ry.  Co.,  36  T.  648.  Appellees  brought  suit  in  January. 
1891,  in  the  district  court  of  San  Augustine  county,  to  recover  of  the  Red  River. 
Sabine  &  Western  Railroad  Company  as  principal,  and  certain  persons  as  sure- 
ties, on  a  bond  executed  by  them,  obligating  said  railway  company  and  said 
sureties  to  repay  certain  subscriptions  to  the  said  railway  company  in  case  it 
was  not  completed  to  San  Augustine  by  January  1,  1890.  It  was  held  that  a 
railway  company  which  has  a  located  line  in  the  county,  but  no  general  office, 


-17.]  M-E   OF  ACT!"  ^77 

.  lin»u_rht  in  the  county  in  which  tin-  t  :s  all^ir^d  t<>  havo 

committed,  an  allegation  of  residence  of  the  defendant  is  not 
necessary.1 

?'  246.  Suits  by  mechanics,  etc.,  against  railroad  companies. 

Suirs  by  mechanics,  laborers  and  operatives  for  their  wages  duo 
by  railroad  companies  may  be  instituted  and  prosecuted  in  any 
county  in  this  state  where  such  lal*>r  was  performed,  <>r  in  which 
the  cause  of  action  or  a  part  thereof  accrued,  or  in  the  county  in 
which  the  principal  office  of  such  railroad  company  is  situated;  and 
in  all  such  suits  service  of  process  may  be  made  in  the  manner  nuw 
r«-<  |iiired  by  law.a 

In  a  suit  by  a  holder  of  time-checks  issued  by  subcontract"  us, 
>.t  a  general  contractor  for  building  a  railroad  through  the 
county  where  suit  is  filed,  and  also  against  the  railroad  company  to 
enforce  the  laborer's  lien  upon  the  road,  a  plea  in  abatement  by 
the  contractor  that  his  residence  was  in  another  county  was  prop- 
erly  stricken  out.  The  right  to  enforce  the  lien  in  the  county 
where  the  railroad  was  built  gives  the  jurisdiction.  This  was  not 

_;itived  in  the  plea.3 

?'  247.  Suits  against  foreign  corporations. 

Foreign,  private  or  public  corporations,  joint-stock  companies  or 
associations,  not  incorporated  by  the  laws  of  this  state,  and  doing 
business  witiiin  this  state,  may  be  sued  in  any  court  within  this  state 
having  jurisdiction  over  the  subject-matter  in  any  county  where 
the  cause  of  action  or  a  part  thereof  accrued,  or  in  any  county 
where  such  company  may  have  an  agency  or  representative,  or  in 
the  county  in  which  the  principal  office  of  suoh  company  may  !>,• 
situated ;  or  when  the  defendant  corporation  has  no  agent  or  rep- 

tint  whose  treasurer  had  his  office  in  the  county  where  suit  was  brought,  may 
be  sued  in  such  county.     Venue  was  sufficiently  shown  in  the  petition  by  tln> 

•ions,  so  far  as  the  railroad  cerapany  was  concerned.  H..  the  m-.iMiivr. 
r  M'lmg  in  the  county  where  suit  was  brought,  was  also  one  of  the  trustees  for 
th»-  citix'  n-,  aii'l  one  of  the  plaintiffs  in  the  suit.  Service  was  not  had  on  him. 
hut  on  tin-  president  of  the  com|iany.  who  resided  in  another  county.  The  venue 
was  Buftlcieiitly  shown  \>y  the  allegations  of  the  petition,  and  the  evidence  tl» T  - 

.  which  sustained  it.    The  statute  confers  the  right  to  sue  a  corporation 
in  any  county  when-  it  has  an  agency  or  representative.    The  other  defendant! 
who  were  sureties  OD  the  bond  of  the  railway  company,  and  did  not  reside  in 
the  county  where  suit  was  brought,  and  who  pleaded  their  privilege  to  b 
in  the  county  of  tli'-ir  residence,  could  not  be  sued  in  another  county,  unl 
railway  company  had  its  domicile  in  the  county  when-  the  suit  was  inst:- 
which  is  not  shown  in  this  case.— citing  Hilliard  v.  Wilson,  76  T  S.  \V. 

.'->).    Red  River,  S.  &  W.  Ky.-Co.  v.  Dluunt,  a  Civ.  AI  -.  \V.  Ren. 

1  southern  Cotton  Press  Co.  v.  Bradley,  53  T.  587. 
-  K.  S,  1194,  exception  34,  3314. 

A.  &  A.  P.  Ky.  Co.  v.  Cockrill,  ?:>  T.  613  (10  S,  W.  Rep.  702). 


278  VENUE   OF   ACTIONS.  [§§  248,  249. 

resentative  in  the  state,  then  in  the  county  where  the  plaintiffs,  or 
either  of  them,  reside.1  This  act  authorizes  suit  against  a  foreign 
corporation  in  any  county  where  such  corporation  may  have  an 
agency  or  representative,  and  without  showing  that  its  principal 
office  is  in  such  county.2  "Where  a  non-resident  corporation  has  an 
office  and  an  agent  in  only  one  county  in  the  state,  it  may  be  sued 
in  that  county,  but  not  in  any  other.3 

A  foreign  railroad  company  may  be  sued  in  a  county  in  which  it 
has  an  agent  who  is  authorized  to  solicit  shipments  of  freight  and 
sell  tickets,  etc.,  and  citation  may  be  served  upon  such  agent.4 

£  248.  Suits  against  insurance  companies. 

Suits  against  fire,  marine  or  inland  insurance  companies  may  be 
commenced  in  any  county  in  which  any  part  of  the  insured  prop- 
erty was  situated;  and  suits  against  life  and  accident  insurance 
companies  or  associations  may  also  be  commenced  in  the  county  in 
which  the  persons  insured,  or  any  of  them,  resided  at  the  time  of 
such  death  or  injury.5  Suits  may  be  instituted  and  prosecuted 
against  any  life  or  health  insurance  company  in  any  county  where 
loss  has  occurred,  or  where  the  policy-holder  instituting  such  suit 
resides.6 

§  249.  When  a  river,  etc.,  is  a  county  boundary. 

In  all  cases  where  any  part  of  a  river,  water-course,  highway, 
road  or  street  shall  be  the  boundary  line  between  two  counties,  the 
several  courts  of  each  of  said  counties  shall  have  concurrent  juris- 
diction in  all  cases  over  such  parts  of  said  river,  water-course,  high- 
way, road  or  street  as  shall  be  the  boundary  of  such  county,  in  the 
same  manner  as  if  such  parts  of  said  river,  water-course,  highway, 
road  or  street  were  within  the  body  of  such  county.7 

1  R.  S.  1194,  exception  25;  Acts  1887,  p.  181. 

2  Bradstreet  Co.  v.  Gill,  72  T.  115  (9  S.  W.  Rep.  753). 

3  St.  L.,  A.  &  T.  Ry.  Co.  v.  \Vhitloy,  77  f.  126  (13  S.  W.  Rep.  853).     A  foreign 
corporation,  having  its  principal  office  in  D.  county,  made  a  contract  with  per- 
sons residing  in  C.  county  to  loan  money  exclusively  through  them  on  lands 
situated  in  their  county.    The  contract  was  made  in  C.  county,  and  provided 
that  the  corporation  should  send  an  agent  there  to  examine  the  lands  to  be 
offered  for  loans.    Being  sued  in  C.  county  for  breach  of  such  contract,  in  mak- 
ing loans  on  lands  there  through  other  persons,  the  corporation  pleaded  its  priv- 
ilege to  be  sued  in  D.  county;  and  it  was  held  that  the  cause  of  action  must  be 
deemed  to  have  arisen,  at  least  in  part,  in  C.  county,  and  that  the  suit  was 
maintainable  there.    Equitable  Mortgage  Co.  v.  Weddington,  2  Civ.  App.  373  (21 
S.  W.  Rep.  576).    A  non-resident  of  the  state  may  sue  a  foreign  insurance  com- 
pany doing  business  in  the  state  in  a  county  in  which  the  company  has  an  agent. 
Mut  L.  Ins.  Co.  of  N.  Y.  v.  Nichols,  24  S.  W.  Rep.  910. 

«  Shane  v.  Mex.  Int.  Ry.  Co.,  28  S.  W.  Rep.  456  (8  Civ.  App.  441). 
6R.  S.  1194,  exception  26;  Act  1874 

«R.  S.  3070;  Act  1874;  Atlantic  Ins.  Co.  v.  Sinker,  Davis  &  Co.,  1  App.  C.  C., 
§  954. 
7R.S.  1195. 


§§250,251.]  rovui  "F  A<  M.  279 

§  250.  Contested  elections. 

Contested  elections  for  the  office  of  district  attorney  must  be 
tried  by  the  district  judire  of  the  district  in  the  county  where  the 
candidate  who  has  received  the  certificate  of  election  resides;  and 
if  there  are  two  district  judges  in  said  county,  then  before  either 
of  said  judges. 

Contested  elections  for  the  office  of  district  judge  "  shall  be  tried 
in  the  county  of  the  adjoining  district  the  county  seat  of  which  is 
nearest  to  the  residence  of  the  candidate  "who  shall  have  received 
the  certificate  of  election,  and  by  the  district  court  of  such  adjoin- 
ing district ;  and  in  counties  having  two  or  more  district  courts, 
then  to  be  tried  by  the  district  court  of  the  adjoining  district  in 
said  county." 

Contested  elections  for  the  office  of  chief  justice  or  associate  jus- 
tice of  the  supreme  court  and  judges  of  the  court  of  criminal  ap- 
peals "shall  be  tried  in  the  county  and  by  the  district  court  of  the 
district,  or  one  of  them,  in  which  the  seat  of  government  is  located." 
Contested  elections  for  the  office  of  chief  justice  of  the  court  of 
civil  appeals  or  associate  justice  of  any  supreme  judicial  district  in 
the  state  "  shall  be  tried  by  the  district  court,  or  either  of  them  if 
there  are  more  than  one,  in  the  county  where  said  court  of  civil 
appeals  has  its  sittings." 

Contested  elections  for  any  county  office  "  shall  be  tried  by  the 
district  court  in  the  county  where  the  election  was  held.  If  there 
are  two  such  courts,  then  to  be  tried  by  either  of  them." 

Contested  elections  for  other  purposes  than  the  election  of  offi- 
cers "shall  be  tried  by  the  district  court  in  the  county  where  the 
election  was  held,  or  either  of  them,  if  there  is  more  than  one  such 
court." l 

The  constitutional  amendment  of  1891  conferred  on  the  district 
courts  jurisdiction  of  contested  elections.2  Before  the  adoption  of 
tin-  amendment,  the  decisions  were  to  the  effect  that  the  legislature 
had  no  power  to  confer  jurisdiction  on  the  district  courts  in  such 
cases.3 

§  251.  Actions  against  and  to  appoint  receivers. 

Actions  may  be  brought  against  the  receiver  of  the  property  i>f 
any  prison  where  said  person  resides.  Actions  may  be  brought 
against  receivers  of  a  corporation  in  the  county  where  the  prin- 
cipal office  of  the  corporation  may  be  located,  and  against  receivers 
of  railroad  companies  in  any  county  through  or  into  which  the  road 

>  R  a  1793-1797;  Acts  1895,  p.  58. 
2  Const,  art.  V,  g  8. 

'Gibson  v.  T.  mpl,  t..n.  <..  I        .     Kx  parteTowles,  48T.  413;  City  of  Ft.  \V,.i  th 
v.  Dsivis.  57  T.  •„'•.'.->:  state  v.  Owens,  63  T.  261.     See  Odell  v.  Wharton,  87  T.  173 
W.  Rep.  123);  Cobb  v.  Cohron,  26  S.  W.  Rep.  846. 


280  VENUE   OF   ACTIONS.  [§  252. 

is  constructed;  and  service  of  summons  may  be  had  upon  the  re- 
ceiver, or  upon  the  general  or  division  superintendent  of  the  road, 
or  upon  any  agent  of  said  receiver  who  resides  in  the  county  in 
which  the  suit  is  brought. 

If  the  property  sought  to  be  placed  in  the  hands  of  a  receiver  is 
a  corporation  whose  property  lies  within  this  state,  or  partly  within 
this  state,  then  the  action  to  have  a  receiver  appointed  must  be 
brought  in  this  state  in  the  county  where  the  principal  office  of  the 
corporation  is  located.1 

Suits  against  any  assignee,  trustee  or  receiver,  operating  a  rail- 
way, may  be  brought  in  any  county  through  or  into  which  the 
railway  extends  or  is  operated.3 

The  act  for  the  appointment  of  receivers,  above  quoted,  was  in- 
tended to  confer  upon  corporations  the  privilege  of  having  suits  for 
the  appointment  of  receivers  of  their  property  instituted  in  the 
counties  of  their  principal  offices,  and  does  not  deprive  courts  of 
other  counties  of  the  power  to  make  the  appointment  in  the  event 
the  corporation  fails  to  plead  its  privilege.  And  where  a  receiver 
is  appointed  without  objection,  he  will  hold  the  property  as  against 
a  receiver  subsequently  appointed  in  the  county  in  which  the  cor- 
poration has  its  principal  office.3 

An  action  for  damages  for  injuries  resulting  in  a  death  may  be 
brought  against  a  receiver  in  charge  of  the  railway  in  a  county  in 
which  the  company  has  an  office  and  agent.4 

§  252.  Plea  of  personal  privilege  may  be  waived;  how  tried. 

The  right  of  a  defendant  to  be  sued  in  a  particular  county  is  per- 
sonal and  may  be  waived.  If  he  wishes  to  assert  his  privilege,  it 
must  be  done  by  plea  in  abatement,  filed  in  due  order  of  pleading, 
and  verified.8  When  the  fact  does  not  appear  on  the  face  of  the 
petition  that  the  defendant  is  sued  in  the  wrong  county,  he  must 
raise  the  question  of  his  right  by  plea  in  abatement;  when  it  does 
so  appear,  he  may  avail  himself  of  the  privilege  by  special  demurrer.0 
Jurisdiction  as  to  the  subject-matter  must  be  determined  in  the  first 
instance  by  the  petition,  and  where  its  allegations  show  a  case 
within  the  power  of  the  court  to  decide,  the  suit  will  be  entertained, 

»  R.  S.  1484,  1488;  Acts  1887,  p.  119. 

2R.  S.  1194,  exception  2& 

»  Bonner  v.  Hearn,  75  T.  242  (12  S.  W.  Rep.  38). 

4  Brown  v.  Gay,  76  T.  444  (13  S.  W.  Rep.  472). 

5  Whittaker  v.  Wallace.  2  App.  C.  C.,  §  559;  Walker  v.  Stroud,  6  S.  W.  Rep.  202: 
Spicer  v.  Taylor,  21  S.  W.  Rep.  314;  Fairbanks  v.  Blum,  2  Civ.  App.  479  (21  S.  W. 
Rep.  1009);  Watson  v.  Baker,  67  T.  48  (2  8.  W.  Rep.  375).    See  Texas  Pleading 
(1893),  §  424. 

«Mast«-rson  v.  Cundiff,  58  T.  472;  Fairbanks  v.  Blum,  2  Civ.  App.  479  (21  S.  W. 
Rep.  1009). 


2.J  NTE    OF    ACTIONS.  L'^l 

unless  it  >ul>M-'|iit->ntly  appear  that  the  jurisdiotional  fa 
fraudulently  alleged  for  the  solo  purpose  of  conferring  the  jurisdic- 
tion. But  when  the  evidence  shows  clearly  that  the  court  has  no 
power  to  determine  the  real  case  developed  (notwithstanding  the 
petition  may  be  good  upon  its  face),  and  that  the  jurisdictional  alle- 
fraudulently  inserted,  the  court  will  dismiss  on  its 
own  motion.  But  if  the  evidence  merely  shows  that  the  court  has 
no  jurisdiction  over  the  person  of  the  defendant,  this  is  not  the  rule. 
Wh«-n  he  is  sued  out  of  the  county  of  his  residence,  and  the  plaintiff 
fraudulently  alleges  facts  which  would  bring  the  case  under  one  of 
the  exceptions  to  the  general  rule  laid  down  in  the  statute,  he  must 
plead  in  I'liu'me  to  the  jurisdiction  of  the  court,  and  must  in  his  pica 
set  forth  the  true  facts  of  the  case,  and  allege  the  fraudulent  pur- 
pose of  the  petition.1 

The  plea  must  be  sworn  to,  unless  the  truth  of  the  facts  alleged 
appears  of  record.2  It  may  be  tiled  either  in  proper  person  or  by 
attorney.1 

The  plea  of  privilege  is  waived  by  answering  to  the  merits.4  This 
rule  will  not  be  relaxed  in  favor  of  an  administrator  //<•  lonii  />»n 
or  an  heir,  whose  predecessor  in  administration,  or  ancestor,  had 
waived  the  right  by  answering  to  the  merits.*  But  it  is  not  waived 
when  the  pleas  are  filed  in  due  order,8  unless  defendant  goes  to 
trial  without  asking  the  action  of  the  court  on  his  plea.7  The  rule 
is  that  the  plea  must  be  presented  at  the  term  it  is  tiled.8  And 
where  a  party  tiled  a  plea  to  the  jurisdiction,  and  during  the  same 
term  procured  a  continuance,  and  the  court  at  the  next  term  refused 
to  recognize  the  plea,  it  was  held  there  was  no  error.9  It  has  been 
held  that  the  plea  is  waived  by  consenting  to  a  continuance;10  but 
a  contrary  rule  is  recognized  in  other  oases,11  especially  when  there 
is  no  other  defense  filed  in  the  cause.1* 

i  Watson  v.  Baker.  67  T.  48  (2  a  W.  Rep.  375);  Life  Ins.  Co.  v.  Ray,  50  T.  •'»!  1 ; 
Pool  v.  Pickett.  8  T.  K'2. 

^R  S.  1265:  Turman  v.  Robertson,  8  App.  C.  C.,  g  215;  Taylor  v.  Hall.  2o  T. 
811;  Wils.,i.  v.  Adams,  15  T.  323;  Keabadour  v.  Wt-ir.  Ju  T.  854;  Hi^gius  \ 
erii-k,  *J  T 

Richardson  v.  Wells,  3  T.  224:  R.  a  5. 

-tout-  Nat.  Bank  v.  Hinchruan,  3  App.  C.  C.,  §  375;  Engel  v.  Brown,  1  ,\\<\>. 
C.  C.,  §  803. 

J  Russell  v.  Tex.  &  Pao.  Ry.  Co.,  68  T.  648  (5  9.  W.  R.-p.  080). 

•Equitat  •  '...  v.  \V,.,i,Ungton,  2  Civ.  \\>\>.  :}7:i  r-'l  S.  W.  R.-|>.  :,TG),  cit- 

ing St.  L.  #  A.  T.  Uy.  0..  v.  \Vlutley,  77  T.  1^5  .!={  S.  \V.  Hop.  *:>:ji,  ami 
Kiiiiliinj?  York  v.  State,  73  T.  651  (11  a  W.  Rep.  869). 

i  Watson  v.  Baker,  67  T.  48  (2  a  W.  Rep.  875). 

•  Green  v.  Brown.  4  App.  C.  C.,  g  162, 

9  Peveler  v.  Peveler.  54  T.  53. 

'  -Donald  v,  Blount,  2  App.  C.  C.,  §  344;  Kelso  v.  Adams,  2  U.  C.  374. 

»  Bergstrom  v.  Hum-*.  24  a  W.  Rep.  1038, 

12  Howetb  v.  Clark,  4  App.  C.  C,  g  314. 


282  VENUE    OF    ACTIONS.  [§  252. 

The  plea  is  waived  by  submitting  a  motion  to  quash  the  service 
of  citation,1  but  not  by  appearance  to  move  to  set  aside  a  default, 
for  the  reason  that  defendant  was  not  served  with  citation.  Such 
an  appearance  is  an  appearance  to  the  next  term,  and  a  plea  then 
filed  in  due  order  is  in  time.2  It  is  waived  by  filing  a  cross-bill 
against  the  plaintiff.3 

The  defendant  is  entitled  to  a  jury  to  pass  upon  the  facts  raised 
by  his  plea.4  And  where  he  alleges  that  he  resides  in  a  county 
other  than  the  one  in  which  suit  is  brought,  the  burden  is  on  him 
to  prove  it.5 

1  Carothers  v.  Johnson,  4  App.  C.  C.,  §  263. 

2  A.,  T.  &  S.  F.  Ry.  Co.  v.  Adams,  4  App.  C.  C.,  §  12. 
» Slater  v.  Trostel.  21  S.  W.  Rep.  285. 

«  Howeth  v.  Clark,  4  App.  C.  C.,  §  315;  Taylor  v.  Hall,  20  T.  211;  Robertson  v. 
Ephraim,  18  T.  118;  Gouhenant  v.  Anderson,  20  T.  459;  Kelso  v.  Adams,  2  U.  C. 
874. 

5  Kelso  v.  Adams,  2  U.  C.  374;  Robertson  v.  Ephraim,  18  T.  118.  As  to  the  nat- 
ure and  requisites  of  the  plea  of  personal  privilege,  see  Sayles'  Texas  Pleading, 
§424. 


CHAPTER  XL 


INSTITUTION  AND  DOCKETING  OF  SUIT& 


253.  How  suit  commenced. 
•J">4.  Indorsing  and  docketing. 
255.  File  docket,  how  kept. 
356.  Court  and  bar  dockets. 

Indexing  names  of  parties. 
258.  Not  to  be  commenced  on  Sunday 
or  on  a  holiday. 


§  259.  Filing  papers. 

260.  Suits  against  counties. 

261.  Contract  limiting  time  within 

which  to  sue. 

262.  Stipulation  in  contract  as  to  no- 

tice of  claim  for  damages. 


£  253.  How  suit  commenced. 

All  civil  suits  in  the  district  and  county  courts  are  commenced  by 
petition  tiled  in  the  office  of  the  clerk  of  the  court.1  When  the  pe- 
tition is  filed  with  the  clerk,  and  all  other  regulations  complied  with, 
it  is  his  duty  forthwith  to  issue  a  citation  for  the  defendant.2  In- 
junction proceedings  are  instituted  by  presenting  a  petition  for  the 
injunction  to  the  judge  of  the  court,  and  the  injunction  issues  upon 
the  order  of  the  judge  indorsed  on  or  attached  to  the  petition.*  A 
proceeding  by  quo  warranto  is  begun,  by  the  attorney  -general,  or  by 
the  district  or  county  attorney  of  the  proper  county  or  district,  by 
presenting  a  petition  to  the  district  court,  asking  leave  to  file  an  in- 
formation in  the  nature  of  a  quo  warranto  in  the  name  of  the  state.1 

In  the  early  cases  it  is  held  that  the  statute  of  limitations  runs 
after  filing  the  petition  until  leading  process  issues;5  and  where 
plaintiff  filed  his  petition  and  instructed  the  clerk  not  to  issue  a  cita- 
tion until  directed,  the  suit  was  not  commenced  so  as  to  arrest  the 
running  of  the  statute.6  The  mere  filing  of  a  petition  does  not  fix 
the  liability  of  an  indorser  where  the  process  is  suppressed.7  The 
rulings  in  the  later  cases  lead  to  the  conclusion  that  the  filing  of  the 
petition  is  sufficient  to  stop  the  running  of  the  statute;8  and  in  one 
case,  at  least,  it  is  so  held.  The  court  say:  "  In  this  state  the  filing 
of  the  petition  in  the  district  court  is  the  commencement  of  salt 
and  stops  the  running  of  the  statute  of  limitations,"  citing  the  arii- 


2R.S.  1212. 

'R.S.2992,  299a 

«  R  &  4343. 

»Keeble  v.  Bailey,  8  T.  492;  Kinney  v.  Lee,  10  T.  155. 

"  Maddox  v.  Humphrey,  30  T.  494;  Veramendi  v.  Hutchins,  48  T.  531. 

7  Hoffman  v.  Cage,  81  T.  595. 

8  McManus  v.  Wallis,  52  T.  534 


INSTITUTION    AND   DOCKETING    OF   SUITS.          [§.§  254—250. 

cle  of  the  statute  standing  at  the  head  of  this  section ;  and  it  is  held 
that  a  delay  in  issuing  citation,  unless  at  the  instance  of  the  plaint- 
iff, would  not  keep  the  statute  in  operation;  that  it  would  not  be 
presumed  that  plaintiif  ordered  a  delay.1  But  there  must  be  a  lona 
fide  intention  on  the  part  of  plaintiff  that  process  shall  be  served  at 
once  upon  the  defendant.  This  is  announced  as  the  rule  of  the  ele- 
mentary writers  and,  practically,  the  rule  of  the  supreme  court.2 

§  254.  Indorsing  and  docketing. 

When  a  petition  is  filed  with  the  clerk,  it  is  his  duty  to  indorse 
thereon  the  day  on  which  it  was  filed  and  the  number  of  the  suit, 
and  he  shall  enter  the  suit  in  a  docket  to  be  kept  by  him  for  that 
purpose,  to  be  called  the  clerk's  file  docket.3  A  garnishment  pro- 
ceeding is  docketed  in  the  name  of  the  plaintiff  as  plaintiff,  and  in 
the  name  of  the  garnishee  as  defendant.4  A  proceeding  to  try  the 
right  of  property  is  docketed  in  the  name  of  the  plaintiff  in  the 
writ  as  the  plaintiff,  and  of  the  claimant  as  defendant.5 

§  255.  File  docket,  how  kept. 

The  clerk's  file  docket  must  be  so  kept  as  to  show  in  a  convenient 
form  the  number  of  the  suit,  the  names  of  the  attorneys,  the  names 
of  the  several  parties  to  the  suit,  and  the  object  thereof,  and  in  a 
brief  form  the  return  on  the  process  made  by  the  sheriff  or  con- 
stable, and  all  the  subsequent  proceedings  had  in  the  case,  specify- 
ing the  time  when  they  were  had.6 

§  256.  Court  and  bar  dockets. 

The  clerks  of  the  district  and  county  courts  are  required  to  keep 
a  court  docket  in  a  well-bound  book,  ruled  into  columns,  in  which 

» Tribby  v.  Wokee,  74  T.  142  (10  S.  W.  Rep.  1089).  In  Bates  v.  Smith.  80  T.  242 
(16  S.  W.  Rep.  47),  the  plaintiff  filed  his  petition  upon  a  promissory  note  De- 
cember 31,  1887.  The  note  sued  on  was  due  January  2,  1884.  Citation  did  not 
issue  until  January  30.  1888.  The  finding  of  the  court  was  that  just  before  the 
filing  of  the  petition  "negotiations  were  pending  between  plaintiffs  and  defend- 
ant for  the  settlement  of  the  note,  but  that  plaintiffs,  to  prevent  the  bar  of  the 
statute,  filed  the  petition,  instructing  the  clerk  not  to  issue  citation,  as  settle- 
ment was  pending  and  there  might  be  no  necessity  for  citation:  that  the  cita- 
tion was  in  fact  issued  after  the  expiration  of  four  years,  and  after  the  failure 
of  the  negotiations."  The  conclusion  of  law  by  the  court  that  the  note  was  not 
barred  wag  error. 

^Ricker  v.  Shoemaker,  81  T.  22  (16  S.  W.  Rep.  645).  And  see  White  v.  Holley, 
8  Civ.  App.  590  (24  S.  W.  Rep.  831);  I.  &  G.  N.  Ry,  Co.  v.  McCulloch,  24  S.  W.  Rep. 
1101;  G.,  H.  &  S.  A.  Ry.  Co.  v.  Cook,  25  S.  W.  Rep.  455;  Davis  v.  Andrews,  27 
S.  W.  Rep.  1033;  Longino  v,  Ward,  1  App.  C,  C,,  §  521;  Breraond  v,  Johnson,  i 
App.  C.  C.,  §  609, 

3  R.  a  1178, 

•  R.  8.  220. 

»  R.  a  5296, 

6  R.  8,1179. 


IXSTHTTIiiX    AXI>    DOCKKTIN'O    OF    8CIT8. 

they  must  enter,  in  lliefrat  column,  the  number  of  case  and  names 
of  attorneys;  in  the  second,  the  names  of  the  parties;  in  the  ' 
the  nature  of  the  action;  in  l\\c  fourth,  the  pleas;  in  the  fifth,  rul- 

•f  former  terms;  in  the  sixth,  the  motions  and  rulings  of  the 

:it  term. 

9BB  must  be  placed  on  the  docket  as  they  are  filed.  The 
clerk  must,  at  each  term,  make  out  t\vo  copies  of  this  docket,  one 
for  the  use  of  the  court  and  one  for  the  use  of  the  bar.  In  prepar- 
ing the  court  docket,  it  is  the  duty  of  the  clerk  to  designate  the  suits 

L'ular  consecutive  numbers,  called  file  numbers,  and  to  mark  on 
each  paper  in  every  case  the  file  number  of  the  cause.  In  every 

appealed  to  a  court  of  civil  appeals,  the  clerk,  in  making  up 
the  docket  at  each  succeeding  tenn,  must  keep  the  cause  in  its 
proper  place  on  the  docket  for  disposition  after  being  decided ;  and 
at  the  next  term  after  issuing  a  writ  of  error,  he  must  replace  the 
cause  on  the  docket,  with  its  original  file  number.1 

£257.  Indexing  names  of  parties. 

It  is  the  duty  of  the  several  clerks  of  the  district  and  county 
courts  to  provide  and  keep  in  their  respective  offices,  as  part  of  the 
records  thereof,  full  and  complete  alphabetical  indexes  of  the  names 
of  the  parties  to  all  suits  filed  in  their  courts.  These  indexes  must 
be  kept  in  well-bound  books,  and  must  state  in  full  the  names  of  all 
the  parties  to  such  suits,  which  are  to  be  indexed  and  cross-indexed, 
so  as  to  show  the  name  of  each  party  under  the  proper  letter;  and 
a  reference  must  be  made  opposite  each  name  to  the  page  of  the 
minute  book  upon  which  is  entered  the  judgment  in  each  case.2 

.*58.  Not  to  be  commenced  on  Sunday  or  on  a  holiday. 
N"  civil  suit  shall  be  commenced,  nor  shall  any  process  be  issued 
or  served,  on  Sunday  or  on  any  legal  holiday,  except  in  cases  of 
injunction,  attachment  or  sequestration.3  The  1st  day  of  January, 
the  22d  day  of  February,  the  2d  day  of  March,  the  21st  day  of 
April,  the  4th  day  of  July,  the  first  Monday  in  September,  and  the 
JMh  day  of  December,  of  each  year,  and  all  days  appointed  by  the 

lent  of  the  United  States,  or  by  the  governor,  as  days  of  fast- 
ing or  thanksgiving,  and  every  day  on  which  an  ebction  is  held 
throughout  the  state,  are  declared  holidays  on  which  all  the  public 
offices  of  the  state  may  be  closed,  and  are  treated  and  considered 
as  Sunday,  or  the  Christian  Sabbath,  for  all  purposes  regarding  the 

nting  for  payment  or  acceptance  and  of  protesting  for  and 
giving  notice  of  the  dishonor  of  bills  of  exchange,  bank  checks,  and 

» Rules  70-83. 
2R.  S.  1094,  1147. 
3  R  S.  1180. 


286  INSTITUTION    AND    DOCKETING-   OF   SUITS.  [§  259. 

promissory  notes  placed  by  the  law  upon  the  footing  of  bills  of  ex- 
change.1 

The  statute  does  not  require  the  public  offices  of  the  state  to  be 
closed  on  legal  holidays,  nor  prohibit  the  courts  from  transacting 
business.  In  enumerating  what  is  forbidden  to  be  done  on  a  holi- 
day, and  leaving  the  performance  of  other  things  discretionary,  it 
is  manifest  that  judicial  acts,  not  specially  prohibited,  which  are 
performed  on  that  day,  are  not  void.  It  is  too  late  to  object  for 
the  first  time  in  the  appellate  court  to  the  fact  that  a  writ  of  inquiry 
was  executed  in  the  district  court  on  a  legal  holiday,  and  on  which 
writ  a  judgment  was  afterwards  rendered.  If  the  objection  were 
good  it  should  have  been  made  in  tho  court  below, —  to  set  aside 
the  proceedings  for  irregularity.2 

The  statute  refers  to  such  process  as  may  be  required  in  the  com- 
mencement of  a  suit,  and  in  cases  of  injunction,  attachment  and 
sequestration.  The  issuance  and  service  of  process  on  Sunday  is,  at 
common  law,  invalid;  the  statute  declares  the  common  law  and,  by 
exception,  modifies  it.  Holidays  have  only  the  sanctity  attached 
to  them  by  statute,  and  all  business  may  be  transacted  on  them  ex- 
cept what  is  expressly  forbidden.  The  words  "  any  civil  process," 
in  the  statute,  are  broad  enough  to  cover  executions,  but  the  chapter 
limits  the  language  to  process  pertaining  to  the  commencement  of 
suits.  No  such  prohibition  is  found  in  the  chapter  on  executions 
or  on  that  on  legal  holidays,  and  it  was  held  that  an  objection  to 
the  return  on  an  execution  and  to  a  sheriff's  deed,  on  the  ground 
that  they  showed  that  the  execution  sale  was  made  on  a  holiday, 
was  properly  overruled.3 

An  objection  on  the  ground  that  a  petition  was  filed  on  a  legal 
holiday  is  waived  by  the  defendant's  filing  a  general  demurrer  and 
a  general  denial.4 

§  259.  Filing  papers. 

No  paper  is  considered  as  filed  in  the  proceedings  of  any  cause, 
unless  the  clerk  shall  have  indorsed  thereon  the  day  on  which  it 
was  filed,  and  have  signed  his  name  officially  thereto.5  It  seems 

i  R.  8.  2939.  The  above  article  is  2835  of  the  Revised  Statutes  of  1879.  The 
first  Monday  of  September  was  made  a  holiday  by  the  act  of  1893.  Articles 
2836  and  2837  of  the  Revised  Statutes  of  1879  appear  to  have  been  omittad  from 
the  revision  of  1895.  They  read  as  follows:  "All  the  exemptions  and  require- 
ments usual  on  legal  holidays  may  be  observed  on  the  days  above  named."  "If 
any  of  the  days  named  shall  occur  on  Sunday,  the  next  day  thereafter  shall  be 
observed  as  a  holiday;  but  bills  of  exchange  or  other  paper  may  be  presented 
for  payment  or  acceptance  on  the  Saturday  preceding  such  holiday  and  pro- 
ceeded on  accordingly."  See  Sayles'  Civ.  Stat.,  arts,  2836,  2837. 

2H.,  E.  &  W.  T.  Ry.  Co.  v.  Harding,  63  T.  162. 

3  Crabtree  v.  Whitesell,  65  T.  111. 

4  Ullman  v.  Verne,  4  S.  W.  Rep.  54& 

5  R.  &  1449. 


•0.]  INSTITUTION*    AND   DOCKETING    OF    Si 

that  the  courts  will  take  notice  of  facts  and  circumstances  in  a  case, 
le  from  any  file-mark  by  the  clerk,  to  ascertain  that  a  paper 
was  in  fact  tiled,  that  is,  deposited,  in  the  proper  place;  and  it  is 
held  that  an  objection  to  a  paper  for  want  of  a  file-mark,  which 
has  obviously  been  placed  in  the  custody  of  the  clerk  and  acted 
upon  by  the  court  below,  comes  too  late  when  urged  for  the  first 
time  in  the  appellate  court.1  A  paper  is  deemed  filed  in  a  cause 
when  placed  in  the  custody  of  the  court,  whatever  the  date  indorsed 
by  the  clerk.1  To  file  a  paper  is  simply  to  place  it  in  the  official 
custody  of  the  clerk,  and  it  is  the  duty  of  the  clerk  to  indorse  upon 
it  the  date  of  its  reception.  If  he  neglects  this  duty  it  will  not' 
prejudice  the  rights  of  the  party,  and  the  indorsement  may  be 
made  nunc  pro  tune*  A  motion  handed  to  a  clerk,  and  by  him 
marked  "  filed,"  with  his  official  signature,  is  properly  liled,  al- 
though the  clerk  at  the  time  was  not  in  his  office.4 

If  a  party  cause  the  clerk  to  indorse  a  paper  "  filed,"  and  imme- 
diately withdraws  it  from  the  custody  of  the  clerk  and  from  the 
inspection  of  the  opposite  party  and  the  court,  the  paper  will  not 
be  considered  as  having  been  filed  in  contemplation  of  law.5  After 
pleadings  have  been  filed  they  cannot  be  withdrawn  even  by  per- 
mission of  the  court,  without  consent  of  both  parties.8  Pleas  are 
not  considered  filed  unless  the  clerk  indorse  thereon  the  date  of 
filing  and  sign  his  name  thereto.7  Where  several  defendants  were 
all  served  with  process,  and  the  judgment  recited  that  the  parties 
appeared,  the  presumption  was  that  the  want  of  the  indorsement 
of  the  filing  of  the  answer  of  one  of  the  defendants  was  a  clerical 
omission.8 

Where  a  defendant  voluntarily  produces  a  deed,  and  it  is  used 
in  evidence  by  plaintiff,  but  without  being  marked  "  filed,"  it  is  not 
error,  on  a  second  trial  of  the  case,  to  compel  defendant  to  produce 
the  deed.' 

§  260.  Suits  against  counties. 

No  county  shall  be  sued  unless  the  claim  upon  which  such  suit  is 
founded  shall  have  first  been  presented  to  the  county  commissioners' 
court  for  allowance,  and  such  court  shall  have  neglected  or  refused 

1  Eggenberger  v.  Brandenberger,  74  T.  274  (11  a  W.  Rep.  1099);  Knight  v.  Hollo- 
man,  6  T.  158. 

*Lessing  v.  Gilbert,  8  Civ.  App.  174  (87  a  W.  Rep.  751);  Deal  v.  Alexander,  6 
T.  531 ;  Holman  v.  Chevallier,  14  T.  337. 

'  Slocumb  v.  State,  11  T.  15;  Holman  v.  Chevallier,  14  T.  387. 

«  Hammock  v.  May,  38  T.  196. 

»Beal  v.  Alexander,  6  T.  53L 

« Coles  v.  Perry,  7  T.  109. 

"  Love  v.  Mclntyre,  3  T.  10. 

8Callison  v.  Autry,  4  T.  371. 

"Boothe  v.  Feist,  19  &  W.  Rep.  39a 


2S8  INSTITUTION    AND   DOCKETING    OF    SUITS.         [§§  201,  262. 

to  audit  and  allow  the  same,  or  any  part  thereof.1  A  claim  for  dam- 
ages against  a  county  for  a  trespass  on  lands  should  be  pr;s3nted  to 
the  commissioners'  court  for  allowance  before  suit.2  The  presenta- 
tion of  the  claim  as  required  is  indispensable,  and  the  petition  is 
demurrable  if  it  fails  to  allege  the  presentation  and  disallowance.3 

§  261.  Contract  limiting  time  within  which  to  sue. 

It  is  unlawful  for  any  person,  firm,  corporation,  association  or 
combination  of  whatsoever  kind  to  enter  into  any  stipulation,  con- 
tract or  agreement  by  reason  whereof  the  time  in  which  to  sue 
thereon  is  limited  to  a  shorter  period  than  two  years.  And  no 
stipulation,  contract  or  agreement  for  any  such  shorter  limitation 
in  which  to  sue  shall  ever  be  valid  in  this  state.4 

§  262.  Stipulation  in  contract  as  to  notice  of  cla.m  for  damages. 

No  stipulation  in  any  contract  requiring  notice  to  be  given  of  any 
claim  for  damages  as  a  condition  precedent  to  the  right  to  sue 
thereon  is  valid  unless  such  stipulation  is  reasonable;  and  any  such 
stipulation  fixing  the  time  within  which  such  notice  shall  be  given 
at  a  less  period  than  ninety  days  is  void.  When  such  notice  is  re- 
quired it  may  be  given  to  the  nearest  or  any  other  convenient  local 
agent  of  the  company  requiring  the  same.  In  any  suit  brought 
under  this  act  it  will  be  presumed  that  notice  has  been  given  unless 
the  want  of  notice  is  specially  pleaded  under  oath.5 

i  R.  S.  790. 

»  Norwood  v.  Gonzales  Co.,  79  T.  218  (14  S.  W.  Rep.  1057). 

a  Hohraan  v.  Comal  Co.,  34  T.  36. 

«R.  S.  3378;  Acts  1891,  p.  20.  The  cases  decided  without  the  aid  of  this  stat- 
ute were  generally  to  the  effect  that  a  stipulation  limiting  the  time  of  bringing 
suit,  or  within  which  to  give  notice  of  a  claim  for  damages,  was  valid  if  reason- 
able under  the  circumstances.  McCarty  v.  Railway  Co.,  79  T.  33  (15  S.  W.  Rep. 
164);  G.,  C.  &  S.  F.  Ry.  Co.  v.  Trawick,  80  T.  270  (15  S.  W.  Rep.  568;  18  S.  W.  Rep. 
948);  T.  &  P.  Ry.  Co.  v.  Klepper,  24  S.  W.  Rep.  567;  G.,  C.  &  S.  F.  Ry.  Co.  v.  Wilbanks, 
7  Civ.  App.  489  (27  S.  W.  Rep.  303);  G.,  C.  &  S.  F.  Ry.  Co.  v.  Trawick,  68  T.  314 
(4  S.  W.  Rep.  567);  G.,  C.  &  S.  F.  Ry.  Co.  v.  Gate  wood,  79  T.  89  (14  S.  W.  Rep.  913); 
G.,  C.  &  S.  F.  Ry.  Co.  v.  Williams,  4  Civ.  App.  294  (23  S.  W.  Rep.  626);  G.,  C.  & 
8.  F.  Ry.  Co.  v.  Clarke,  5  Civ.  App.  547  (24  S.  W.  Rep.  355):  G.,  H.  &  S.  A.  Ry.  Co. 
v.  Silegman,  23  S.  W.  Rep.  298;  G..  C.  &  S.  F.  Ry.  Co.  v.  Hume,  6  Civ.  App.  653 
(24  S.  W.  Rep.  915);  Same  v.  Elliott,  26  S.  W.  Rep.  636;  G.,  H.  &  S.  A.  Ry.  Co.  v. 
House,  4  Civ.  App.  263  (23  S.  W.  Rep.  332):  Same  v.  Kelley,  26  S.  W.  Rep.  470; 
H.  &  T.  C.  Ry.  Co.  v.  Hester,  2  U.  C.  296;  G.,  H.  &  S.  A.  Ry.  Co.  v.  Ball,  80  T.  602 
(16  S.  W.  Rep.  441);  G.,  C.  &  S.  F.  Ry.  Co.  v.  McCarty,  83  T.  608  (18  S.  W.  Rep. 
716);  Ma  Pac.  Ry.  Co.  v.  Harris.  67  T.  166  (2  S.  W.  Rep.  574);  Ft.  W.  &  D.  C.  Ry. 
Co.  v.  Greathouse,  82  T.  204  (17  S.  W.  Rep.  834);  Mo.  Pac.  Ry.  Co.  v.  Childers,  1 
Civ.  App.  302  (21  S.  W.  Rep.  76);  G.,  C.  &  S.  F.  Ry.  Co.  v.  Wright,  1  Civ.  App.  402 
(21  S.  W.  Rep.  80);  Mo.  Pac.  Ry.  Co.  v.  Paine,  1  Civ.  App.  621  (21  S.  W.  Rep.  78): 
St.,  L.  A.  &  T.  Ry.  Co.  v.  Turner,  1  Civ.  App.  625  (20  S.  W.  Rep.  1008);  I.  &  G.  N. 
Ry.  Co.  v.  Garrett,  5  Civ.  App.  540  (24  S.  W.  Rep.  354);  Pac.  Exp.  Co.  v.  Darnell, 
fi  S.  W.  Rep.  765;  Good  v.  G.,  H.  &  S.  A.  Ry.  Co.,  11  S.  W.  Rep.  854;  G.,  H.  &  S. 
A.  Ry.  Co.  v.  Short,  25  S.  W.  Rep.  142;  G.,  H.  &  S.  A.  Ry.  Co.  v.  Williams,  25  S. 
W.  Rep.  311,  1019. 

»R  S.  3379;  Acts  1891,  p.  20.    See  note  to  next  preceding  section. 


CHAPTER  XII. 


OF  CITATION  BY  PERSONAL  SERVICE. 


Must  issue  forthwith. 
364  One  to  each  county. 
365.  Contents  of  citation. 

266.  The  officer  to  whom  issued. 

267.  Must  be  directed  to  the  proper 

county. 

268.  Must  state  nature  of  demand. 

269.  Mu^t  state  the  names  of  all  the 

parties. 

270..  Certainty  as  to  the  names  of  par- 
ties. 

••271.  Date  of  filing  and  file  number. 
.'.  Must  be  under  seal,  dated  and 

tested. 

t,  M  ust  state  time  and  place  of  ap- 
pearance. 
;.  Style  of  process. 

When  returnable. 

276.  Defendant  out  of  county;  copy 
of  petition  to  accompany  cita- 
tion. 
•J77.  Sheriff  or  clerk  a  party  to  the 

suit 
278.  Service  by  deputy  sheriff. 

'.  Duty  of  officer  as  to  indorsement, 

execution  and  return. 
280.  Service  within  the  county. 


281.  Service  in  suits  against  counties. 

282.  Service  on  cities,  towns,  etc. 

283.  Service  on    incorporated    com- 

panies and  receivers. 
284  Life  and  health  insurance  com* 
panics. 

285.  Service  on  foreign  corporations. 

286.  Service  upon  a  firm. 
:>?.  Return  of  citation. 

288.  Return  not  served. 

289.  Alias  process. 

290.  Time  of  service  of  citation. 

291.  Notice  to  absent  or  non-resident 

defendants. 

292.  Amendment  of  citation. 

293.  Mistake  in  return. 
2'.»4.  Acceptance  of  service. 

295.  Entering   appearance    in    open 

court. 

296.  Answer  is  appearance. 

297.  Quashing  citation  on  motion. 

298.  No  new  citation  in  case  of  re- 

versal on  appeal. 

299.  No  judgment  without  service. 

300.  Objections  to  citation,  service 

and  return. 

301.  False  return. 


?;  263.  Must  issue  forthwith. 

When  u  petition  has  been  tiled  with  the  clerk,  and  the  other  reg- 
ulations prescribed  by  statute  have  been  complied  with,  it  is  his 
duty  to  issue  forthwith  a  writ  of  citation  for  the  defendant.1  "Where 
suit  is  allowed  by  legislative  act  against  the  state,  and  no  mode  of 
serviee  is  j  )!•» -scribed,  service  uoon  the  governor  or  on  the  attorney - 
general  is  sufficient.2 

1  R  S.  1212.     It  has  been  held  that  a  prayer  for  citation  is  not  necessary.    Sun 
Mut.  Ins.  Co.  v.  Hollan.l.  >'  .\\<\>.  r.  Q,  ;;  M&    See  Lauderdale  v.  Stationery  Co., 
«0  T.  496. 

2  State  v.  Cook,  57  T.  205;  State  v.  Steele,  57  T.  200. 

II 


290  CITATION   BY   PERSONAL   SERVICE.  [§§  264-207. 

§  264.  One  to  each  county. 

If  there  be  several  defendants,  residing  in  different  counties,  one 
citation  must  issue  to  each  of  such  counties.1 

§265.  Contents  of  citation. 

The  citation  must  be  directed  to  the  sheriff  or  any  constable  of 
the  county  where  the  defendant  is  alleged  to  reside,  or  be,  and  must 
command  him  to  summon  the  defendant  to  appear  and  answer  the 
plaintiff's  petition,  at  the  next  regular  term  of  the  court,  stating 
the  time  and  place  of  holding  the  same.  It  must  state  the  date 
of  the  filing  of  the  plaintiff's  petition,  the  file  number  of  the  suit, 
the  names  of  all  the  parties,  and  the  nature  of  the  plaintiff's  de- 
mand.2 The  style  must  be  "  The  State  of  Texas; "  it  must  be  made 
returnable  on  the  first  day  of  the  next  term  of  the  court  after  the 
issuance  thereof;  and  must  be  dated  and  tested  by  the  clerk  with 
the  seal  of  the  court  impressed  thereon,  and  the  date  of  its  issuance 
must  be  noted  thereon.3 

§  266.  The  officer  to  whom  issued. 

The  citation  must  be  directed  to  the  sheriff  or  any  constable  of 
the  county  where  the  defendant  is  alleged  to  reside  or  be.4  An 
original  citation  to  any  other  county  is  not  authorized.5  It  was 
held  not  fatal  to  a  writ  that  it  was  directed  to  the  sheriff,  and  not 
to  "  the  sheriff  or  any  constable  "  of  the  proper  county.6 

§  267.  Must  be  directed  to  the  proper  county. 

The  citation  must  be  directed  to  the  proper  officer  of  the  county 
where  the  defendant  is  alleged  to  reside  or  be.7  A  citation  directed 
to  an  officer  of  one  county  cannot  be  legally  served  by  an  officer  of 
a  different  county ; 8  and  a  citation  which  does  not  name  the  county 
cannot  be  lawfully  served  in  any  county.  If  it  is  directed  to  the 
proper  officers  of  B.  county  simply,  service  by  the  sheriff  of  Bexar 
county  is  void.9  The  citation  can  issue  only  to  the  county  in  which 
the  defendant  is  alleged  to  reside ;  if  he  absent  himself  from  that 
county,  so  that  process  cannot  be  served  upon  him,  but  not  under 
circumstances  that  would  authorize  an  attachment,  the  proper  prac- 
tice is  to  file  a  supplemental  petition,  alleging  his  absence,  and  stat- 

1R  S.  1213;  Raymond  v.  Holmes,  11  T.  54. 
2  R  S.  1214. 
»  R  S.  1447. 
4  R  S.  1214. 

6  Lauderdale  v.  Ennis  Stationery  Co.,  80  T.  496. 
«  Carroll  v.  Peck,  31  T.  649. 

7  R  S.  1214. 

8  Witt  v.  Kaufman,  25  T.  Sup.  384.    But  it  is  held  that  the  judgment  is  only 
voidable.    Jones  T.  Lasater,  2  U.  C.  435. 

>G.,  H.  &  S.  A.  Ey.  Co.  v.  McTiegue,  1  App.  C.  C.,  §  458;  Wadley  v.  Johnson,  2 
TJ.  C.  739. 


§268.]  CITATION   BY    PERSONAL   SERVICE.  1'  '  1 

ing  the  county  in  which  he  is  temporarily  to  be  found,  and  the  clerk 
may  then  direct  a  citation  to  that  county.1 

§  268.  Must  state  nature  of  demand. 

The  citation  must  state  the  nature  of  plaintiff's  demand.2  Where 
the  suit  is  on  a  draft,  a  citation  which  terms  it  a  bill  of  exchange, 
stating  date,  amount,  and  to  whom  payable,  is  sufficient.*  It  is 
required  to  state  correctly  and  substantially  the  nature  of  the  de- 
mand.4 

The  statute  does  not  require  a  detailed  and  specific  statement  of 
the  grounds  of  plaintiff's  action,  but  only  a  statement  of  "  the  nat- 
ure"-—the  character  or  controlling  characteristics  —  of  the  plaint- 
iff's demand.  A  mere  misdescription  in  some  detail  of  the  terms 
of  an  instrument  of  writing  sued  on,  such  as  a  promissory  note,  if 
the  same  is  not  of  a  character  to  mislead  the  defendant  into  sup- 
]  '"sing  that  the  plaintiff's  demand  is  of  a  different  character  than 
that  which  may  be  rationally  inferred  from  the  citation,  will  not 
have  the  effect  to  vitiate  the  service.5  It  was  not  intended  that  the 

1  Duer  v.  Endres,  1  App.  C.  C.,  g  322;  Bean  v.  McQuiddy,  1  App.  C.  C.,  §52;  Taylor 
v.  Pridgen,  3  App.  C.  C.,  §  87.  Where  the  petition  alleged  that  one  defendant 
i"d  in  A.  county  and  the  other  in  C.  county,  the  county  of  the  venue,  and 
tlu-  process  was  directed  to  the  sheriff  of  C.  county,  a  return  of  service  on  both 
defendants  was  held  good.  Saunders  v.  Gilmer,  8  T.  295.  Suit  was  brought  against 
two  defendants,  both  of  whom  were  alleged  to  reside  in  Red  River  county,  and 
process  against  both  was  addressed  to  that  county,  but  was  served  only  on  one. 
It  was  held  that  service  by  the  sheriff  of  another  county,  on  the  defendant  not 
served,  of  process  from  Red  River  county,  directed  to  him  for  that  purpose, 
was  a  nullity.  Ward  v.  Latimer.  2  T.  245.  See  §  289.  infra,  on  alias  process. 

Under  allegations  in  the  petition  that  two  of  the  defendants  resided  in  Burle- 
son  county  (suit  tiled  in  Lampasas  district  court),  it  was  the  duty  of  the  clerk 
to  issue  the  citation  for  both  of  said  defendants  to  that  county,  and  he  was  not 
authorized  to  din-el  the  original  citation  for  either  of  them  to  any  other  place. 
Lauderdale  v.  Knnis  Stationery  Co.,  80  T.  496  (16  S.  W.  Rep.  308).  One  defendant* 

alleged  to  be  a  resident  of  Hill  county.  Imt  wastem]M>rarily  in  Grant  county, 
territory  of  New  Mexico.  Citation  was  issued  to  the  sheritfof  Mitchell  county  in 
<ir>t  instance,  without  having  issued  citation  either  to  Hill  county  or  Grant 
omnty.  NYw  M.-xico.  and  was  served  by  the  sheritf  of  Mitchell  county,  by  de- 
livcini-  a  copyof  the  writ  only.  This  was  held  sufficient.  Sanders  v.  City  Nat. 
Hank.  12S.  W.  Rep.  110. 

.'14. 

»H.,  K.  iV  \V.  Tex.  Ry.  Co.  v.  Erving.  2  App.  C.  C.,  g  1W 
<  1   &  G.  N.  Ry.  Co.  v.  Pape,  1  App.  C.  • 

uin  v.  Kaufman,  62  T.  543.   In  this  case  the  nature  of  the  demand  was  stated 
thus:  ••  Plaintiffs  allege  that  on  the  14th  January,  1878,  the  defendant.  H.  S.  Pip- 
kin, executed  to  S.  B.  Leach  his  promissory  note  for  $1,960,  due  and  payable  on 
Nt  day  of  January,  1878,  bearing  interest,  payable  annually,  at  the  rate  of 
per  cent  per  annum  from  date.    Said  note  being  given  in  part  payment  of 
the  purchase-money  of  and  retaining  a  vendor's  lien  on  the  following  described 
land"  (describing  it).     Tin-  note  was,  in  fact,  payable  on  th--  1-t  -lay  of  January, 
1882.    It  was  held  that  the  nature  of  the  demand  was  sufficiently  stated,  and 
that  the  clerical  error  as  to  the  date  of  maturity  of  the  note  was  not  material 
Judgment  was  rendered  by  default  on  a  promissory  note.    The  petition  as- 


*>92  CITATION  BY  PERSONAL  SERVICE.  [§  269. 

statement  in  the  citation  should  supply  the  place  of  the  petition. 
A  general  statement  notifying  defendant  of  the  character  of  plaint- 
iff's demand,  and  avoiding  any  attempt  at  detail,  is  sufficient.1  It  is 
sufficient  to  set  forth  plainly  the  nature  of  the  complaint  and  the 
relief  sought.2  An  accurate  description  of  the  grounds  of  the  ac- 
tion or  the  instrument  sued  on  is  not  required.3 

§  269.  Must  state  the  names  of  all  the  parties. 

The  citation  must  state  the  names  of  all  the  parties,4  including  the 
defendants.5  If  a  citation  is  defective  in  this  particular  it  will  not 
support  a  judgment  by  default,  and  the  defendant  may  avail  him- 
self of  the  invalidity  on  error.6 

"Where  two  or  more  persons  sue  as  partners,  it  is  sufficient,  all 
other  requisites  of  the  process  being  complied  with,  if  the  citation 
states  the  firm  name,  without  further  description  of  the  plaintiffs, 
their  individual  names  being  stated  in  the  petition;  this  is  held  in 
view  of -the  change  in  the  law  which  dispenses  with  the  delivery  of 

serted  a  claim  for  protest  fees,  and  the  citations,  which  were  not  accompanied 
with  copies  of  the  petition,  notified  defendants  that  protest  had  been  made. 
Judgment  including  protest  fees  was  held  proper.  Sanders  v.  City  Nat.  Bank, 
12  S.  W.  Rep.  110.  Suit  was  brought  on  two  drafts,  one  of  which  was  due  four 
mouths  after  date.  The  petition  and  original  citation  described  both  drafts  ac- 
curately, but  the  copy  of  citation  served  upon  defendant  described  the  four 
months'  draft  as  due  in  five  months  after  date.  This  variance  was  held  imma- 
terial, and  would  not  have  been  fatal  if  it  had  occurred  in  the  original  citation. 
Jensen  v.  Hays,  2  App.  C.  C.,  §  566. 

A  statement  that  the  suit  is  on  a  note,  of  a  particular  date,  payable  at  a  par- 
ticular time,  for  a  particular  amount,  and  that  one  of  the  defendants  is  an  indorser, 
sufficiently  states  the  nature  of  the  demand.  Hunt  v.  Wiley,  1  App.  C.  C.,  §  1214. 

1  H.  &  T.  C.  Ry.  Co.  v.  Burke,  55  T.  323. 

2  Schrarnm  v.  Gentry,  64  T.  143. 

'Loungeway  v.  Hale,  73  T.  495  (11  S.  W.  Rep.  537).  That  the  action  is  on  a 
promissory  note  for  an  amount  stated,  with  interest  at  a  certain  rate,  giving  the 
date,  and  to  foreclose  a  mortgage  on  fifty-six  acres  of  land  out  of  the  Grayson 
county  school  lands  in  Wise  county,  Texas,  being  a  portion  (instead  of  a  certain 
quarter  section)  of  section  19  of  said  subdivision  of  Grayson  county  school  lands,  is 
sufficient.  And  see,  also,  Hinzie  v.  Kempner,  82  T.  617  (18  S.  W.  Rep.  659).  Plaint- 
iff sued  to  recover  certain  land,  making  his  grantor  a  party,  alleging  that  the 
grantor  conveyed  to  him  with  covenants  of  general  warranty,  and  praying  that 
in  the  event  his  title  failed  in  the  suit  he  have  judgment  against  his  grantor  for 
the  purchase-money,  with  interest.  The  citation  stated  the  nature  of  the  de- 
mand to  be  for  the  title  and  possession  of  the  lots  described,  for  $500  damages, 
and  for  costs  and  general  relief.  While  this  was  sufficient  as  to  the  princi- 
pal defendants,  it  was  not  sufficient  to  apprise  the  grantor  of  the  nature  of  the 
relief  sought  against  him.  Miles  v.  Kinney,  8  S.  W.  Rep.  542. 

*  R.  S.  1214;  Bell  v.  Van  Zandt,  53  T.  150;  Little  v.  Marler,  8  T.  107;  Owsley  v. 
Bank,  1  U.  C.  93. 

8  Burleson  v.  Henderson,  4  T.  49. 

«Portwood  v.  Wilburn,  33  T.  713;  Crosby  v.  Lum,  35  T.  41;  Norvell  v.  Garth- 
waite,  25  T.  583;  Heath  v.  Fraley,  50  T.  209;  Rodgersv.  Green,  33  T.  661.  A  cita- 
tion requiring  the  defendant  to  answer  the  petition  of  John  W.  Fraley  "  and 
wife  "  is  insufficient  Heath  v.  Fraley,  50  T.  209. 


§  270.]  CITATION*    BY    PERSONAL    SERVICE. 

a  copy  of  the  petition  in  some  cases.  The  omission  to  state  the 
firm  mime  in  the  petition  in  such  a  case  is  a  point  on  the  pleadings, 
and  not  a  defect  in  the  process.1 

§  27O.  Certainty  as  to  names  of  parties. 

urn  of  service  on  "  Mrs.  Brown"  for  Parmelia  Brown  is  not 

sufficient; »  or  on  J.  N.  H.  for  J.  TV.  H. ; »  or  on  W.  Booth  for  J.  W. 

ii;4  or  on  Cawhart  for  Carhart;5  or  on  Favers  for  Faver;6  or 

« ni  I  In  >  w  for  Brown.7     Service  on  Townsen  will  support  a  judgment 

by  default  against  Townsend.8 

1  Putnam  v.  Wheeler,  65  T.  522;  Andrews  v.  Ennis.  16  T.  46;  Dikes  v.  Munroe, 
15  T.  236;  Graves  v.  Drane.  66  T.  658:  De  Walt  v.  Zeigler,  29  S.  W.  Rep.  60.  A 
variance  as  to  the  names  of  the  plaintiffs,  in  the  copy  of  the  petition  and  cita- 
tion, from  the  original  petition  and  citation,  is  a  matter  of  substance,  of  which, 
if  not  corrected,  the  defendant  may  avail  himself,  by  plea  in  abatement.  Mi-x- 
ner  v.  Siter.  23  T.  621.  When  the  petition  was  against  U.  S.  Cummings  and  the 
citation  was  issued  to  and  served  upon  Uriah  Cummings,  it  was  held  that  the 
variance  between  the  petition  and  writ  was  immaterial.  Cummings  v.  Rice,  9 

Where  the  petition  was  in  the  name  of  Hugh  William  Monroe  and  John  Mon- 
roe, trading  under  the  firm  and  style  of  Monroe  &  Bro..  and  the  citation  stated 
the  name  of  the  plaintiffs  as  Monroe  and  Brother,  it  was  held  that  the  citation 
was  sufficient.  Dikes  v.  Monroe,  15  T.  236. 

Where  the  names  of  the  defendants  stated  in  the  petition  were  J.  B.  C.,  G.  H. 
R,  and  Sampson  Christie,  and  the  citation  was  issued  to  summon  "  Sampson  " 
to  answer  the  complaint,  etc.,  wherein  the  said  J.  H.  G.  is  plaintiff,  and  the  said 
J.  B.  C.,  G.  H.  R.  and  Sampson  (omitting  the  surname)  were  defendants,  and  the 
sheriff  returned  the  citation  served  on  the  defendant  Sampson  Christie,  it  was 
said  that  the  process  was  not  void,  but  only  defective;  that  it  was  sufficient  to 
bring  the  said  defendant  into  court,  and  the  objection  must  be  made  by  plea  in 
abatement  or  by  exception;  that  the  defect  could  be  cured  by  amendment;  and 
if  the  defendant  fails  to  make  his  exception  at  the  proper  time,  or  permit  judg- 
ment to  go  by  default,  he  catrnot  afterwards  be  heard  to  urge  it,  either  in  the 
tli-tnct  court  or  on  error.  Grain  v.  Griffis,  14  T.  358. 

The  petition  stated  "  J.  T.  Craig,  assignee  of  C.  W.  Israel  and  J.  N.  Israel  & 
Co.,  .  .  .  complaining  of,"  etc.  The  citation  served  on  the  defendants  des- 
ignated the  plaintiff  as  "  J.  T.  Craig,  assignee  of  C.  W.  Israel  &  Co."  It  was  held 
there  was  no  material  variation,  as  plaintiff  did  not  sue  as  assignee,  Maddox  v. 
80  T.  600  (16  S.  W.  Rep.  328). 

In  a  suit  on  a  liquor-dealer's  bond,  instituted  by  the  county  or  district  attor- 
ney, where  the  petition  alleges  that  the  suit  is  brought  "  on  behalf  of  and  in  the 
name  of  the  state  for  the  use  and  benefit  of  the  county  of  R.."  tlu-  Citation  prop- 
erly states  that  the  state  is  plaintiff,  and  that  the  party  sued  (naming  himi  is 
defendant  Drake  v.  Si  \V.  Rep.  398. 

Where  two  parties  to  a  note  are  sued,  the  third  one  being  dead,  and  therefore 
not  made  a  party,  the  latter  need  not  be  mentioned  in  the  citation.  Hunt  v. 
Wil.-y.  1  App.C.  C..  ;•  1-214. 

»  Brown  v.  Robertson,  28  T.  555. 

»Hendon  v.  Pugh,  46  T.  'J1,1. 

«  Booth  v.  Holmes,  2  U.  C.  -' 

'Carhart  v.  Britt,  3  App.  C.  C..  g  373. 

•Faver  v.  Robinson.  46  T.  :M4:  Booth  v.  Holmes,  2  U.  C.  282, 

7  Brown  v.  Marqueze.  30  T.  77. 

8  Townsend  v.  Ratcliff,  50  T.  148.    Suit  was  brought  on  a  note  against  G.  and  H. 
The  citation  served  on  G.  was  correct  in  every  respect,  except  that  it  described 


294:  CITATION   BY   PERSONAL    SERVICE.  [§  271. 

A  return  of  service  must  show  with  reasonable  certainty  that  the 
person  served  is  the  defendant  for  whom  the  citation  was  intended; 
and  it  is  more  satisfactory  for  the  return  positively  to  identify  the 
person  served  with  the  defendant  rather  than  that  the  court  shall 
be  left  to  determine  the  identity  by  inference  or  deduction.  It  has 
been  usual  to  hold  a  return  sufficient  if  it  show  service  upon  a  per- 
son of  the  same  name  with  the  defendant,  and  the  inference  of 
identity  thus  indulged  has  been  stretched  to  the  extent  of  sustain- 
ing returns  when  the  initials  of  the  Christian  or  given  name  of  the 
party  served  correspond  with  those  of  the  defendant.  But  this  is 
the  utmost  limit  to  which  presumption  and  inference  can  with  pro- 
priety be  extended.1  If  a  person  who  is  served  with  process  be  not, 
in  fact,  the  defendant,  he  can  make  an  issue  of  fact  on  the  question 
of  his  identity  with  the  person  sued ;  if  he  fails  to  do  this  in  the 
court  below,  the  appellate  court  will  presume  that  the  person  against 
whom  judgment  was  rendered  was  the  true  defendant,  although  the 
initial  of  his  middle  name  be  different  in  the  judgment  from  that 
which  is  given  in  the  petition.2  The  return  need  not  set  forth  that 
the  person  served  is  the  defendant,  if  he  be  correctly  named.3 

The  question  of  identity  of  names  is  addressed  to  the  ear  and  not 
to  the  eye.  Thus,  Basse  and  Busse.  If  the  attentive  ear  finds  dif- 
ficulty in  distinguishing  them  when  pronounced,  they  will  be  con- 
sidered as  idem  sonans*  If  the  names  may  be  sounded  alike,  without 
doing  violence  to  the  power  of  the  letters  found  in  the  variant  or- 
thography, the  variance  is  immaterial.5 

§  271.  Date  of  filing  and  file  number. 

The  citation  must  state  the  date  of  the  filing  of  the  petition  and 
the  file  number  of  the  suit.6  It  seerns  that,  before  the  adoption  of 

H.  as  W.  R  H.  instead  of  R  M.  H.  The  citation  served  on  H.  correctly  described 
the  parties.  It  was  held  that  the  citation  served  on  G.  was  sufficient  to  require 
him  to  answer.  Gunter  v.  McEntire,  24  S.  W.  Rep.  590. 

1  Brown  v.  Robertson,  28  T.  555. 

2  Chandler  v.  Scherer,  32  T.  573. 

3  Clark  v.  Wilcox,  31  T.  322. 

«Ogden  v.  Bosse,  86  T.  336  (24  S.  W.  Rep.  798).  Calvit  and  Calvert  are  idem 
sonans  (Day  Land  &  C.  Co.  v.  N.  Y.  &  T.  Land  Co.,  25  S.  W.  R«p.  1089);  or  Dillaunty, 
Dillahinty  and  Dillahunty  (Dillahunty  v.  Davis:  74  T.  344;  12  S.  W.  Rep.  50);  or 
Emerly  and  Emley  (G.,  H.  &  S.  A.  Ry.  Co.  v.  Daniels,  1  Civ.  App.  695;  20  S.  W. 
Rep.  955);  or  Forris  and  Farris  (Lyne  v.  Sanford,  82  T.  58;  19  S.  W.  Rep.  847);  or 
Giboney  and  Gibney  (Fleming  v.  Giboney,  81  T.  422;  17  S.  W.  Rep.  13);  or  Hyeron- 
ymus  and  Heronymus  (Tevis  v.  Collier,  84  T.  638;  19  S.  W.  Rep.  801);  or  Yarbery 
and  Yarbro  (Russell  v.  Oliver,  78  T.  11;  14  S.  W.  Rep.  264):  or  Lindsey,  Lindsay 
and  Lindsy  (Roberts  v.  State,  2  App.  4);  or  William  and  Williams  (Williams  v. 
State,  5  App.  226.)  Lindsay  and  Lindly  are  not  idem  sonans  (Roberts  v.  State,  2 
App.  4);  or  McKee  and  McRee  (McRee  v.  Brown,  45  T.  503);  or  Nuckols  and  Nich- 
ols (Dodge  v.  Phelan,  2  Civ.  App.  441;  21  S.  W.  Rep.  309);  or  Orr  &  Lindsley, 
and  Orr  &  Lindsey  (Selman  v.  Orr,  75  T.  523;  12  S.  W.  Rep.  697). 

»  Foster  v.  State,  1  App.  531;  Goode  v.  State,  2  App.  520. 

«R  S.  1214. 


,2.]  CITATION    BY    PERSONAL   8ERVI  295 


the  "Rt-viM-.l  Statotee,  an  objection  to  a  citation  that  it  did  not  have 
the  number  of  the  case  marked  on  it  was  technical,  and  properlv 
overruled.1  And  it  is  held  that  a  citation  issued  in  proceedings  by 
arrant  by  a  justice  of  the  peace,  and  returnable  to  an- 
other court,  constitutes  an  exception  to  the  general  rule  requiring 
citations  to  state  the  number  of  the  case  in  which  they  issued.-'  It 
i<  now  held  that  the  requirement  as  to  the  file  number  cannot  be 

ted  :  a  citation  that  does  not  comply  with  the  requirement  will 
not  support  a  judgment  by  default.3 

Failure  to  give  the  date  of  the  filing  of  the  petition  and  a  mis- 

•  i  lent  of  the  number  of  the  case  are  defects,  either  of  which  is 
fatal,  and  a  judgment  by  default  is  erroneous.  It  is  suggested  that 
the  file  number  should  appear  in  the  body  of  the  citation.4 

72.  Must  be  under  seal,  dated  and  tested. 

The  citation  must  be  dated  and  tested  by  the  clerk,  with  the  seal 
of  the  court  impressed  thereon.5  The  service  will  not  be  quashed 
because  the  copy  of  the  petition  was  not  under  seal.6  An  objection 
that  a  citation  exhibited  a  scrawl,  with  an  "  L.  S."  in  place  of  a  seal, 
is  held  to  be  technical  and  properly  overruled.7  When  no  seal  has 
been  provided,  the  clerk  may  use  a  scroll.8 

The  statute  is  very  explicit  in  requiring  the  seal  to  be  affixed  to 
validity  to  writs  and  process.  Citations  not  under  seal  are  void, 
and  the  defendant  may  appear  and  have  them  quashed  on  motion; 
or,  if  judgment  has  been  rendered  by  default,  he  may  have  it  re- 
versed on  writ  of  error.9  The  record  on  appeal  must  show  a  seal.10 
The  citation  may  be  amended  by  affixing  the  seal.11 

Where  the  writ  by  which  defendant  was  cited  had  the  impress  of 
the  seal  of  another  court  than  that  from  which  it  issued,  it  was 
tn-atcd  as  not  authenticated  as  required  by  law,  and  placed  defend- 
ant under  no  obligation  to  obey  its  command  or  make  defense  to 
plaintiffs  suit.  Judgment  by  default  having  been  rendered  in  the 
county  court  upon  a  citation  authenticated  by  the  seal  of  the  dis- 

1  Peters  v.  Crittenden.  8  T.  131. 

2  Biesenbach  v.  Key,  63  T.  79. 

»  Durham  v.  Betterton,  79  T.  223  (14  S.  W.  Rep.  1060). 

«  H.,  E.  &  W.  Tex.  Ry.  Co.  v.  Erving,  2  App.  C.  C.,  §  122;  Kirk  v.  Hampton,  2 
App.  C.  CL,  ?  719. 
iR.  S.  1447;  also  arts.  1122.  1172. 

tncock  v.  Shell,  57  T.  215;  Thomas  v.  Woraack,  13  T.  5«0;  Garnett  v.  Rob- 

:  IVters  v.  Crittenden,  8  T.  131. 

8R.  S.  ll-j:l.  117.5. 

<  hapinan.  :52  T.  569;  Frosch  v.  Schlumpf,  2.T.  422;  Wells  v.  Ames 
\V..rk-.  ::  App.  C  CL,  ?  298. 

..•k  v.  \\Vill.T.  'J  App.  C 
Winn  v.  Sloun,  1  App.  C.  <  '..  ;•  1  in  :}•.  Hale  v.  Gee,  29  S.  W.  Rep.  44, 


296  CITATION   BY   PERSONAL   SERVICE.  [§  273". 

trict  court,  it  was  the  defendant's  privilege  to  appeal  and  have  the 
case  reversed,  and  of  this  privilege  he  could  not  be  deprived  by  any 
proceedings  in  the  county  court  subsequent  to  the  judgment.1 

A  citation  which  is  not  dated  and  tested,  or  which  has  not  the 
date  of  its  issuance  noted  thereon,  is  not  in  conformity  with  the 
statute.2  A  citation  tested  by  a  deputy  clerk  in  his  own  name,  as 
deputy  clerk,  and  pretermitting  the  name  of  his  principal,  was  held 
void.3 

§  273.  Must  state  time  and  place  of  appearance. 

The  citation  must  command  the  officer  to  summon  the  defendant 
to  appear  and  answer  the  plaintiff's  petition,  at  the  next  regular 
term  of  the  court,  stating  the  time  and  place  of  holding  the  court.4 
This  is  a  matter  of  substance,  and  cannot  be  dispensed  with  nor 
supplied  by  implication  or  cured  by  allegations  in  the  petition.5  If 
the  citation  state  an  impossible  time,  it  is  bad ;  as,  the  second  Mon- 
day after  the  tenth  Monday  in  March ;  and  the  defendant  is  not 
required  to  appear  in  court  and  urge  the  defect.6  A  citation  which 
requires  the  defendant  to  appear  at  the  next  regular  term,  of  the 
court,  and  on  the  Monday  in  the  month  designated  by  law  for  the 
term  to  begin,  is  sufficient,  without  specifying  more  particularly 
the  day  of  the  month.7  The  citation  need  not  contain  the  words 
"at  the  next  regular  term; "  it  is  sufficient  if  it  states  the  time  and 
the  place  when  and  where  the  defendant  is  required  to  appear; 
provided,  of  course,  that  the  time  and  place  stated  are  the  time  and 
place  prescribed  by  law  for  holding  the  next  regular  term.8 

A  citation  from  the  county  court  which  notifies  the  defendant  ta 
appear  before  the  district  court  is  defective.9 

*  Imlay  v.  Brewster,  3  Civ.  App.  103;  Brewster  v.  Norfleet,  22  S.  W.  Rep.  226. 

2  R  S.  1447;  L  &  G.  N.  Ry.  Co.  v.  Pape,  1  App.  C.  C.,  §  243.    In  this  case  the 
citation  appeared  to  have  been  issued  a  year  before  the  institution  of  the  suit, 
and  it  was  held  that  such  clerical  error  could  not  be  disregarded  when  the  cita- 
tion was  relied  upon  to  sustain  a  judgment  by  default 

3  Wimbish  v.  Wofford,  33  T.  109. 

*  R  S.  1214 

5  Wright  v.  Wilmot,  22  T.  398;  Davidson  v.  Heidenheimer,  2  U.  C.  490.  In  this 
case  the  time  of  holding  court  was  stated  to  be  on  the  "  second  Monday  in  Mon- 
day, A.  D.  1874"  The  citation  commanded  the  defendant  to  appear  at  the  next 
term,  and  in  the  prayer  of  the  petition  the  time  and  place  were  stated;  but  this 
was  held  insufficient. 

6Covington  v.  Burleson,  28  T.  368. 

'G.,  C.  &  S.  F.  Ry.  Co.  v.  Wheat,  68  T.  133  (3  S.  W.  Rep.  455). 

8  Cave  v.  City  of  Houston,  65  T.  619.     Contra,  Kirk  v.  Hampton,  2  App.  C.  C.^ 
§  719.    Citing  defendant  to  appear  on  the  third  Monday  of  July,  1883,  without 
stating  the  day  of  the  month,  but  stating  that  said  time  is  the  next  regular 
term,  is  sufficient.    McDowell  v.  Nicholson,  2  App.  C.  C.,  g  268. 

9  Rutta  v.  Laff era,  1  App.  C.  C.,  §  822.    A  citation  which  requires  defendant  to- 
appear  at  a  date  prior  to  the  date  of  service  is  defective.    James  v.  Proper,  1 
App.  C.  C.,  §  83;  Binyard  v.  McCombs,  1  App.  C.  C.,  g  520;  Spence  v.  Morris,  2* 


§§  274-276.]  CITATION  BY  PERSONAL  SERV: 

74.  Style  of  process. 

The  style  of  all  writs  and  process  must  be  "  The  State  of  Texas."  * 
Where  process  is  issued  in  the  name  of  the  state,  with  the  name  of 
a  county  added,  the  latter  may  be  rejected  as  surplusage,  or  may 
be  stricken  out  by  amendment.2 

?  275.  When  returnable. 

All  writs  and  process  must  be  made  returnable  on  the  first  day 
of  the  next  term  of  the  court  after  the  issuance  thereof.* 

£276.  Defendant  out  of  county;  copy  of  petition  to  accompany  cita- 
tion. 

AVhere  the  defendant  is  to  be  served  without  the  county  in  which 
the  suit  is  pending,  a  certified  copy  of  the  plaintiffs  petition  must 
accompany  the  citation,  and  should  there  be  more  than  one  defend- 
ant to  be  served  without  the  county,  a  certified  copy  of  the  petition 
must  be  made  out  for  each  of  them.4  If  served  without  the  county 
in  which  the  suit  is  pending,  the  officer  must  deliver  to  the  defend- 
ant, and  each  of  them,  in  person,  the  certified  copy  of  the  petition 
accompanying  the  citation;5  a  true  copy  of  the  citation  is  also  de- 
livered to  each  defendant.6 

Certain  parties  were  made  defendants  by  supplemental  petition. 
The  return  of  the  sheriff  showed  a  delivery  of  copies  of  the  petition,, 
but  did  not  show  in  terms  that  copies  of  the  supplemental  petition 
were  served.  No  objections  were  taken,  and  it  was  held  that,  in 
support  of  the  judgment,  it  would  be  presumed  that  the  defendants- 
were  properly  cited.7 

The  officer  must  deliver  a  certified  copy  of  the  petition  whether 

S.  \V.  Rep.  405.  Or  one  which  cites  him  to  appear  in  the  year  187.  Scott  v. 
Watts,  1  App.  C.  C.,  §  89;  McNeil  v.  Ballinger,  1  App.  C.  C.,  §  841.  A  petit  ion 
was  filed  on  May  ','-.  and  a  citation  so  stating  was  served  May  29,  the  sheriff's 
return  stating  that  the  service  was  by  the  delivery  of  a  true  copy.  Court  con- 
vened June  4.  and  on  sworn  motion  made  to  set  aside  a  judgment  by  default, 
it  was  shown  by  the  copy  of  the  citation  that  the  filing  was  stated  to  be  June 
'21.  Held,  that  the  motion  was  insufficient  to  overcome  the  sheriff's  return. 
Woo.1  v.  rity  of  Galveston,  78  T.  126  (18  a  W.  Rep.  227). 

» R  S.  1447. 

JBiesenbach  v.  Key,  63  T.  79;  Portis  v.  Parker,  8  T.  28;  McMahan  v.  Board- 
man,  29  T.  K". 

1  R.  S.  1447.  A  citation  commanded  the  defendant  to  appear  before  the  county 
court  to  be  held  on  a  certain  Monday  in  the  nmnth.  specifying  the  day  of  the 
month,  concluding  "and  have  you  then  and  there  this  citation."  Held,  that  it 
sutlii -it-iit  ly  designated  the  first  day  of  the  term  as  the  return  day.  De  Walt  v. 
Zeigler,  29  a  W.  Rep.  60. 

«Ra  121.-,. 

•  R  a  1219. 

«Ra  1218. 

'Hackworth  v.  English,  53  T.  488. 


298  CITATION   BY   PERSONAL    SERVICE.  [§  2  77. 

the  writ  so  commands  or  not.1  The  delivery  of  a  copy  not  certified 
will  not  support  a  judgment  by  default.  It  is  not  required  that 
the  petition  be  under  the  seal  of  the  court,  but  it  must  be  attested 
by  the  certificate  of  the  officer  who  issues  it.2 

As  to  defendants  served  in  the  county  where  the  suit  is  pending, 
a  citation  which  is  valid  if  served  with  an  accompanying  copy  of 
the  petition  is  equally  good  served  on  such  defendants  without  a 
•copy  of  the  petition.3 

The  return  of  service  on  one  residing  out  of  the  county,  to  the 
effect  that  the  service  was  by  delivering  to  the  defendant  a  true 
copy  of  the  writ,  together  with  a  certified  copy  of  plaintiff's  orig- 
inal petition,  shows  proper  service.4 

§  277.  Sheriff  or  clerk  a  party  to  the  suit. 

Where  it  appears  from  the  petition  that  the  sheriff  is  a  party  to 
the  suit,  or  is  interested  therein,  the  citation  must  be  addressed  to 
any  constable  of  his  county.5 

In  any  case  in  which  a  district  or  county  clerk  is  a  party,  the 
judge,  either  in  term  time  or  vacation,  on  the  application  of  any 
person  interested,  or  of  his  own  motion,  may  appoint  a  clerk  pro 
tern,  for  the  purposes  of  the  suit.  He  must  be  sworn  and  bonded, 
and  must  perform  all  the  duties  of  the  clerk  in  the  particular  case, 
motion  or  proceeding.6  It  is  held  that  this  provision  is  mandatory, 
and  that  where  the  clerk  acts  as  such  in  a  case  to  which  he  is  a 
party,  all  the  proceedings  are  void.7 

Where  the  action  is  against  the  clerk,  the  citation  may  be  issued 
by  the  clerk  pro  tern,  appointed  by  order  of  the  court.  There  is  no 

1  Crawford  v.  Wilcox,  68  T.  109  (3  S.  W.  Rep.  695);  James  v.  Watson,  2  U.  C. 
741;  Lauderdale  v.  Ennis  Stationery  Co.,  80  T.  496  (16  S.  W.  Rep.  308). 

2  Lazarus  v.  Barrett,  5  Civ.  App.  5  (23  S.  W.  Rep.  822);  Taylor  v.  Pridgeon,  3 
App.  C.  C.,  §  90. 

3  Pipkin  v.  Kaufman,  62  T.  545.    Minors,  who  were  sought  to  be  made  defend- 
ants in  a  suit,  and  who  resided  beyond  the  limits  of  the  county  in  which  the 
suit  was  pending,  were  served  with  copies  of  the  writ  only,  and  not  with  copies 
of  the  petition.    The  jurisdiction  of  the  court  did  not  attach  by  service  of  pro- 
cess,  and  it  had  no  power  to  appoint  for  the  defendants  thus  served  a  guardian 
ad  litem.    Kremer  v.  Haynie,  67  T.  450  (3  S.  W.  Rep.  676). 

One  original  citation,  proper  in  form,  commanding  that  two  who  were  de- 
fendants be  summoned  to  appear  and  answer  the  petition,  was  issued.  Two 
•copies  were  made  out,  and  one  of  the  copies,  with  a  certified  copy  of  the  peti- 
tion, was  served  upon  each  defendant.  Though  the  usual  practice  is  to  issue 
•citation  to  each  of  several  defendants  to  answer  the  petition  exhibited  against 
him  and  his  co  defendants,  the  service  was  held  sufficient.  Carson  v.  Dalton, 
-59  T.  500.  This  decision  refers  to  article  1430.  Paschal's  Digest,  which  required 
a.  citation  to  issue  to  each  defendant. 

*  Sanders  v.  City  Nat.  Bank,  12  S.  W.  Rep.  110. 

*  R.  S.  1216. 

6  R.  S.  1080,  1081,  1135,  1136. 

7  Lewis  v.  Hutchison,  4  App.  C.  C.,  §  79. 


79.]  vTIoN    UY    PERSONAL   SERVICE, 

merit  in  the  •  >n  that  the  signature  "Clerk  Pro  Tern,  of  the 

iv  (  'ourt  <>f  Fort  Bend  County  "did  not  show  that  the  p.- 

•:iT  tin-  writ  was  an  officer  known  to  the  law,  or  that  the  order 

of  the  court  did  not  show  that  the  appointment  was  only  made  for 

•  >{'  the  suit.1     The  constitution  of  !*»'•'.•  impoM-d  upon 

allies  tin-  duties  of  sheriffs  theretofore  devolved  upon  coroners, 

and  it  was  held  tliat  there  was  no  authority  to  appoint  a  special 

sheriff  to  serve  process  in  a  case  in  which  the  sheriff  was  inter- 

.or  could  p  roc-oss  from  the  district  court  be  served  by  a 

il   constable,3  or  by  a  town  or  city  marshal  residing  in  the 

county.4 


Service  by  deputy  sheriff. 
Where  a  deputy  sheriff  serves  citation,  and  fails  in  his  return  to 
di-.-lose  for  whom  he  acted  as  deputy,  a  judgment  by  default  will 
be  reversed.  The  judgment  would  be  sustained  in  a  collateral  pro- 
Mig.5  In  early  cases  it  was  held  that  his  return  of  process  as 
deputy  simply  was  sufficient,  without  disclosing  his  principal.  But 
tln-y  seem  to  be  cases  in  which  the  question  of  validity  was  raised 
collaterally."  Sheriffs  have  power  to  appoint  one  or  more  deputies. 
The  appointment  must  be  made  by  writing.  The  deputies  continue 
in  office  during  the  pleasure  of  the  sheriff,  and  have  power  and  au- 
thority to  perform  all  the  acts  and  duties  of  their  principals.7 

>  279.  Duty  of  officer  as  to  indorsement,  execution  and  return. 

It  is  the  duty  of  the  sheriff  or  deputy  sheriff  or  constable  to  whom 
uny  citation  shall  be  delivered  to  indorse  thereon  the  day  and  hour 
on  which  he  received  it,  and  to  execute  and  return  the  same  with- 
out delay.8  The  return  of  process  served  by  a  sheriff  or  his  deputy 
must  be  signed  officially.9  The  sheriff  must  return  all  process  on 
or  before  the  day  to  which  it  is  returnable.10 

i  De  Walt  v.  Zeigler,  29  S.  W.  Rep.  60. 

-McClan.-  v.  K.^-rs.  4'J  T.  -M4. 

•Boydfii  v.  McClane.  42  T. 

«  Robinson  v.  Schmidt,  4S  T.  13.  Articles  1014,  1015,  Paschal's  Digest,  differed 
very  materially  from  the  article  at  the  head  of  this  section,  but  tin-  following 
cases  on  the  power  of  the  coroner  in  the  execution  of  process,  and  when  the 
clerk  might  issue  process  to  him.  might  be  consulted  to  advantage:  Witt  v.  Kauf- 
man. -.'.•)  T.  Sup.  384;  Mays  v.  Forbes,  11  T.  284;  Oliph.int  v.  Dallas,  15  T.  188; 
Kirk  v.  Murphy,  16  T.  '.M. 

»  Arnold  v.  s,-..tt.  :J9  T.  379;  Jordan  v.  Terry,  33  T.  380;  Seguin  v.  Maverick,  24 

*  Miller  v.  Alexander,  13  T.  497;  Towns  v.  Harris,  13  T.  507. 
7R.S.4806. 
8R.S.  1217,  4905. 
9RS.41.' 
w  R.  &  490U 


300  CITATION   BY   PERSONAL   SERVICE.  [§  280. 

§  280.  Service  within  the  county. 

Unless  the  process  should  otherwise  direct,  it  must  be  served,  if 
within  the  county  in  which  the  suit  is  pending,  by  the  officer  exe- 
cuting it  delivering  to  the  defendant,  or  if  there  be  more  than  one> 
then  to  each  defendant,  in  person,  a  true  copy  of  the  citation.1 

"Where  there  is  more  than  one  defendant,  each  must  be  served. 
Service  on  one  will  not  authorize  a  judgment  by  default  against  the 
others.2  Each  defendant  is  entitled  to  a  true  copy  of  the  citation ; 
and  it  must  appear  from  the  return  that  service  was  so  made.3  In 
some  early  cases  it  was  held  that  a  citation  must  issue  for  each  de- 
fendant, requiring  the  sheriff  to  summon  him  to  answer  the  petition 
of  plaintiff  or  plaintiffs  (by  name)  exhibited  against  him  and  against 
his  co-defendants,  naming  them,  but  that  it  would  not  be  error  if 
each  citation  required  the  sheriff  to  summon  all.  the  defendants.4 
This  ruling  seems  to  be  in  accordance  with  Paschal's  Digest,  article 
1430,  which  required  a  citation  to  issue  to  each  defendant,  when 
there  was  more  than  one.  It  will  be  noticed  that  the  law  now  is, 
that  on  filing  the  petition  the  clerk  must  issue  a  citation  for  the  de- 
fendant (R.  S.  1212);  if  there  be  defendants  residing  in  different 
counties,  one  citation  issues  to  each  county  (art.  1213);  and  in  all 
cases  each  defendant  is  to  be  served  with  a  true  copy  of  the  citation 
(arts.  1218,  1219). 

In  a  suit  against  several  defendants  residing  in  the  same  county, 
the  procuring  of  one  citation  for  each  defendant,  when  the  statute 
directs  that  one  citation  shall  issue  for  all  the  defendants,  might 
render  the  plaintiff  liable  for  unnecessary  costs,  but  could  not  vitiate 
the  service  of  citation.5  In  a  case  in  which  there  were  three  de- 
fendants, the  citation  directed  a  delivery  "  to  the  defendant,"  with- 
out specifying  which  of  them,  and  it  was  held  sufficient  to  support 
a  judgment  by  default.6 

A  defendant  sued  as  executor,  and  also  individually,  need  not  be 
served  with  more  than  one  copy  of  the  citation.7 

If  a  sheriff  or  deputy  meets  with  resistance  in  the  service  of  pro- 
cess, he  may  call  to  his  aid  the  power  of  the  county.  A  constable 
may  call  to  his  aid  any  citizen  of  the  county  who  may  be  convenient.8 

1  R.  S.  1218. 

2  Filman  v.  Johnson,  4  App.  C.  C.,  §  152. 

8  Rutherford  v.  Davenport,  4  App.  C.  C.,  §  244.  A  return  that  a  true  copy  of 
the  writ  was  delivered  to  three  named  defendants  is  not  sufficient.  McDowell 
v.  Nicholson,  2  App.  C.  C.,  §  269;  King  v.  Goodson,  42  T.  152;  Holliday  v.  Steele, 
65  T.  388;  Covington  v.  Burleson,  28  T.  368;  Willis  v.  Bryan,  33  T.  429;  Schramm 
T.  Gentry,  64  T.  143. 

4  Little  v.  Marler,  8  T.  107;  Bendy  v.  Boyce,  37  T.  443. 

»Cent  &  Mont.  Ry.  Co.  v.  Morris,  68  T.  49  (3  S.  W.  Rep.  557). 

«  Pierson  v.  Belcher  L.  &  M.  Co.,  22  S.  W.  Rep.  925. 

fQwsley  v.  Paris  Exch.  Bank,  1  U.  C.  93. 

» R.  &  4906,  4916. 


§§  281-283.]  CITATION  BY  PERSONAL  SERVICE.  301 

£  281.  Service  in  suits  against  counties. 

In  a  suit  against  a  county  the  citation  must  be  served  on  the 
county  judge  of  such  county.1 

§  282.  Service  on  cities,  towns,  etc. 

In  suits  against  any  incorporated  city,  town  or  village,  the  cita- 
tion may  be  served  on  the  mayor,  clerk,  secretary  or  treasurer 
thereof.2 

In  a  suit  against  a  city  it  would  be  sufficient  for  the  citation  t<> 
vommand  that  the  corporation  be  summoned  by  service  on  the 
mayor.  It  Avould  not  vitiate  the  citation  for  it  to  command  that 
the  mayor  and  aldermen  be  also  summoned ;  this  would  be  proper 
^ -here  the  officers  are  required  to  do  some  official  act,  for  then,  on 
failure  to  comply  with  the  command,  no  question  could  arise  as  to 
their  liability  for  contempt.  It  is  not  important  that  the  alder- 
men were  mentioned  in  the  writ  though  not  in  the  petition.  Deliv- 
ery of  a  copy  of  the  citation  to  the  person  mentioned  as  mayor 
would  bring  the  corporation  before  the  court.3  * 

%  283.  Service  on  incorporated  companies  and  receivers. 

In  suits  against  any  incorporated  company  or  joint-stock  asso- 
ciation, the  citation  may  be  served  on  the  president,  secretary  or 
urer  of  such  company  or  association,  or  upon  the  local  agent 
representing  such  company  or  association  in  the  county  in  which 
suit  is  brought,  or  by  leaving  a  copy  of  the  same  at  the  principal 
office  of  the  company  during  office  hours.  In  suits  against  receivers 
of  railroad  companies  service  may  be  had  upon  the  receiver,  or  upon 
the  general  or  division  superintendent,  or  upon  any  agent  of  the 
receiver  who  resides  in  the  county  in  which  the  suit  is  brought.1 

Service  upon  the  agent  of  a  corporation  defendant  is  good,  but 
the  writ  must  cite  the  corporation  to  appear,  not  the  agent.5  It  is 
not  essential,  though  it  is  proper,  and  the  better  practice,  to  name 
the  local  agent  upon  whom  service  is  to  be  made.  An  omission  to 
do  so  does  not  invalidate  the  citation.6  It  is  the  better  practice  for 
both  the  petition  and  the  citation  to  name  the  local  agent,  and  for 
the  writ  to  direct  service  upon  him.  If  they  be  thus  specific,  a  judg- 
ment by  default  may  be  taken  without  proof  that  the  person  sr . 

i  R.  S.  1220. 

*R.  S.  1221. 

»  City  of  Houston  v.  Emery,  76  T.  282,  821  (13  &  W.  Rep.  264,  266). 

<R.  &  1222,  1484. 

»L  &  G.  N.  Ry.  Co.  v.  Sauls,  2  App.  C.  C.,  §  242:  Sun  Mut  Ins.  Co.  v.  Seeligson, 
59  T.  3;  G.,  C.  &  S.  F.  Ry.  Co.  v.  Rawlins,  80  T.  579  (10  S.  W.  Rep.  430);  Phojnix 
F.  Ins.  Co.  v.  Cain,  21  a  W.  Rep.  709;  Tex.  Pac.  Ry.  Co.  v.  Florence,  4  App.  C.  C., 
§  88;  Tex.  Mex.  Ry.  Co.  v.  Wright.  29  S.  W.  Rep.  i 

•Mo.  Pac.  Ry.  Co.  v.  Wise,  8  App.  C.  C.,  §  386;  L  &  G.  N.  Ry.  Co.  v.  Sauls,  3 
App.  C.  C.,  g  242. 


302  CITATION   BY    PERSONAL   SERVICE.  [§  283. 

•was  in  fact  the  agent  of  the  company ;  otherwise  no  action  should 
be  taken  in  the  determination  of  the  cause  until  proof  is  made  of 
the  agency.  The  return  of  the  officer  is  not  conclusive  as  to  who 
was  the  local  agent,  but  the  fact  may  be  put  in  issue  by  sworn  plea. 
The  issue  cannot  be  raised  by  motion  in  the  absence  of  a  sworn 
plea.1  There  seems  to  be  some  doubt  on  the  point  of  practice.  It  is 
held  that  a  corporation  may  appear  and  quash  a  citation  issued  in 
a  suit  against  it  by  showing  that  the  person  on  whom  it  was  served 
was  not  its  officer  or  agent ;  and  either  by  motion  or  original  suit 
it  can  have  a  judgment  by  default  set  aside  by  proving  that  the 
person  cited  was  not  its  agent  or  officer  authorized  by  law  to  be 
served ;  that  from  the  decisions  it  would  seem  that  when  it  is  brought 
to  the  knowledge  of  the  court,  by  the  affidavit  of  the  person  upon 
whom  the  citation  has  been  served,  that  a  judgment  by  default  is 
being  sought  against  a  corporation  by  service  upon  him  as  its  officer 
or  agent,  and  that  he  is  not  such,  the  court  would  have  the  power 
to  inquire  into  the  fact  before  proceeding  to  judgment.2 

Service  cannot  be  made  on  a  defendant  railway  company  by  leav- 
ing a  copy  of  the  citation  at  its  office,  unless  it  be  at  the  principal 
office  of  the  corporation.  Such  service  may  be  made  on  the  local 
agent  of  the  defendant,  representing  it  in  the  county  of  the  venue 
of  the  cause.3  Service  upon  one  not  an  officer,  but  who  was  elected 
to  the  office  three  days  after  the  service,  is  not  valid  service  upon 
the  corporation.  That  the  officers  of  a  corporation  may  have 
known  of  the  issuance  of  the  writ  does  not  dispense  with  the  reg- 
ular service  as  provided  by  the  statute.4  Where  the  sheriff  served 
the  secretary  by  name,  stating  in  his  return  that  such  person  was 
the  secretary,  such  return  was  sufficient  evidence  of  the  identity  of 
the  person  served  as  secretary  to  support  a  judgment  by  default, 
although  the  petition  did  not  designate  him  as  secretary  by  name.5 

When  service  of  citation  is  made  upon  the  agent  of  an  incorpo- 
rated company  who  resides  in  the  county  where  the  suit  is  brought, 

1  G.,  H.  &  S.  A.  Ry.  Co.  v.  Gage,  63  T.  568.    The  petition  stated  "  that  said  com- 
pany has  an  office  for  the  transaction  of  its  business  as  a  common  carrier  in  the 
city  of  Austin,  Travis  county,  Texas,  at  which  place  the  agent  of  said  company 
is  Robert  S.  Collins."    The  suit  was  brought  in  Travis  county.     This  was  a  suffi- 
cient averment  that  Collins  was  the  local  agent  of  the  company  in  Travis  county, 
and  no  judicial  ascertainment  of  the  agency  was  necessary  to  authorize  a  judg- 
ment by  default.     H.  &  T.  C.  Ry.  Co.  v.  Burke,  55  T.  323. 

2  Jones  v.  City  of  Jefferson.  66  T.  576  (1  S.  W.  Rep.  903). 
«G.,  H.  &  S.  A.  Ry.  Co.  v.  Gage.  63  T.  563. 

<Harrell  v.  Cattle  Co.,  73  T.  612  (11  S.  W.  Rep.  863). 

6  S.  A.  &  A.  P.  Ry.  Co.  v.  Wells,  3  Civ.  App.  307  (23  S.  W.  Rep.  31).  It  does  not 
appear  from  the  record  in  this  case  that  the  court  did  not  receive  evidence  that 
the  person  served  was  the  secretary,  and  if  necessary  it  should  be  presumed  that 
such  evidence  was  furnished.  In  aid  of  the  judgment  every  presumption  should 
be  indulged  which  is  consistent  with  the  facts  made  to  appear. 


-  k]  CITATION     liV    I'KRSONAL    SERVICE.  303 

the  defendant  company,  though  its  principal  office  may  be  else- 
where, is  not  entitled  to  be  served  with  a  certified  copy  of  the  peti- 
tion.' A  return  of  service  upon  the  local  agent  of  a  corporation, 
miming  him,  by  delivering  to  him  in  person  a  true  copy  of  the  writ, 
stating  the  date,  is  good.2  The  service  should  be  made  by  a  deliv- 
ery by  the  officer  of  a  true  copy  of  the  citation  to  the  local  agent, 
and  the  return  of  service  should  state  that  service  was  effected  in 
that  manner.  A  return  that  the  citation  was  served  is  not  sulli- 
cient.  It  must  state  what  was  done.*  In  a  suit  against  two  railway 
companies,  through  a  local  agent,  upon  whom  service  of  citation  is 
obtained  as  the  agent  of  both  companies,  and  who  is  thus  described 
in  the  petition,  a  copy  of  the  citation  should  be  left  with  such  agent 
for  each  defendant.4  A  general  passenger  agent  for  the  state,  hav- 
ing an  office  in  a  county  other  than  one  through  which  the  road 
runs,  is  an  agent  such  as  is  contemplated  by  the  statute.  Service 
upon  such  agent  will  bind  the  company  represented  by  him.5 

§  284.  Life  and  health  insurance  companies. 

In  a  suit  against  a  life  or  health  insurance  company  by  a  policv- 
holder,  process  may  be  served  upon  any  person  in  the  state  holding 
a  power  of  attorney  from  such  company;  and  if  no  such  person  can 

1  H.  &  T.  C.  Ry.  Co.  v.  Burke,  55  T.  323. 

«  Mo.  Pac,  Ry.  Co.  v.  Wise,  3  A  pp.  C.  C.,  $  386. 

3  Continental  Ins.  Co.  v.  Milliken,  64  T.  48. 

<  Cent.  &  Mont.  R  Co.  v.  Morns,  68  T.  49  (3  S.  W.  Rep.  457). 

5  St.  L.  &  S.  F.  Ry.  Co.  v.  Traweek,  84  T.  65  (19  S.  W.  Rep.  370).  There  is  noau. 
thority  for  the  service  of  process  upon  the  general  agent  of  a  domestic  insurance 
company.  Hamburg-Bremen  F.  Ins.  Co.  v.  Moses,  2  U.  C.  438.  The  citation  in  a 
suit  against  an  incorporated  railway  company  described  the  company  as  a  rail- 
road company,  and  it  was  held  there  was  no  error  in  overruling  a  motion  to 
quash  the  service.  G.,  H.  &  S.  At  Ry.  Co.  v.  Donohoe,  56  T.  16& 

In  a  suit  against  a  railway  corporation,  service  of  process  was  made  in  August, 

ii'l'-r  tin-  provisions  of  the  act  of  February  7,  \*~>l    Pa-^-li.  Dig.,  art.  4888), 

••  t.y  leaving  with  tin-  within  named  defendant,  the  H.  &  T.  C.  R  R  Co.,  at  their 

•  >ffice  in  Houston,"  a  true  copy  of  the  citation  and  the  accompanying  cer- 
tified copy  of  plaintiff's  jn-tition.   On  the  proposition  that  a  motion  to  qua-h  tho 

•  •  should  havf  pr.-vailed,  it  was  held:     (1)  The  second  section  «(  the  act  of 
March  "2\.  1^74,  entitled  "An  act  to  fix  the  venue  in  en-tain  cases,"  and  the  sec- 
ond section  of  the  act  of  April  17,  1S74,  entitled  "An  act  to  confer  jurisdiction 

tain  cases,"  did  not  repeal  by  implication  the  provision*  of  article  4888, 
l'a~- -hal's  Digest,  but  were  intended  to  be  cumulative.    (2)  The  motion  to 
was  properly  overruled.    H,  &  T.  C.  R  R  Co.  v.  Wilh.  \  isioii 

of  the  act  of  1874  referred  to  is  the  article  at  the  ln-ad  of  this  s.vtion.  Article 
4888,  Paschal's  Digest,  requires  a  railroad  company  to  i->tal>lish  a  princi]Kil  otlice 
at  some  point  on  the  line  of  its  road,  and  provide-  that  all  process  aua.n^t  til-- 
company may  be  served  on  the  president  or  secretary,  or  by  leaving  a  copy  at 
the  principal  office  of  the  corporation. 

Where  the  record  is  silent  as  to  the  actual  domicile  of  a  railroad  compat.- 
shows  an  agency  in  a  certain  county,  such  county  maybe  taken  a-  tin-  domicile 
of  the  company  for  the  purpose  of  service  of  citation.    Hunt  v.  A.,  T.  &  S.  F.  K'\ . 
Co.,  28  S.  W.  EUtp,  WO. 


304  CITATION   BY   PERSONAL    SERVICE.  [§§  285,  286. 

be  found,  upon  affidavit  of  that  fact  being  filed,  process  may  be 
served  by  publication  as  in  other  cases.1 

g  285.  Service  on  foreign  corporations. 

In  any  suit  against  a  foreign  private  or  public  corporation,  joint- 
stock  company  or  association,  or  acting  corporation  or  association, 
citation  or  other  process  may  be  served  on  the  president,  vice- 
president,  secretary  or  treasurer,,  or  general  manager,  or  upon  any 
local  agent  within  this  state,  of  such  corporation,  joint-stock  corn- 
pan  v  or  association,  or  acting  corporation  or  association.2 

Service  upon  a  foreign  insurance  company  by  delivery  of  the 
citation  to  its  agent  within  the  state  is  sufficient  to  support  a  judg- 
ment by  default.3  But  not  if  it  be  shown  that  the  agent  was  inter- 
ested adversely  to  the  company.4  The  following  citation  is  approved : 
"  The  state  of  Texas,  to  the  sheriff  or  any  constable  of  Washington 
county,  greeting :  You  are  hereby  commanded  to  summon  the  West- 
ern Union  Telegraph  Company  through  Mrs.  L.  M.  Miles,  its  local 
agent  at  Brenham,  Texas,  who  represents  said  company  at  said 
place,  and  who  is  alleged  to  reside  in  said  Washington  county,  to 
appear  at  the  next  regular  term  of  the  district  court  of  Washing- 
ton county,  to  be  holden  at  the  court-house  thereof,  in  the  city  of 
Brenham,  on  the  first  Monday  in  March,  1890,  ...  in  a  suit 
numbered  on  the  docket  of  said  court  6791,  wherein  " —  repeating 
the  names  of  the  parties,  with  a  statement  of  the  cause  of  action, 
and  duly  attested.5 

§  286.  Service  upon  a  firm. 

In  suits  against  partners  the  citation  may  be  served  upon  one  of 
the  firm.  Such  service  is  sufficient  to  authorize  a  judgment  against 
the  firm  and  against  the  partner  actually  served.6 

Where  the  suit  is  against  several  partners  jointly  indebted  upon 
contract,  and  the  citation  has  been  served  upon  some  of  such  part- 

1  R  S.  3070. 

2  R  S.  1223;  Acts  1885,  p.  79. 

*  Pac.  Mut.  L.  Ins.  Co.  v.  Williams,  79  T.  633  (15  S.  W.  Rep.  478). 

<  North  British  &  M.  Ins.  Co.  v.  Storms,  6  Civ.  App.  659  (24  S.  W.  Rep.  1122). 
For  proof  sufficient  to  support  a  finding  of  agency,  see  the  case  cited,  and  JEtna. 
L.  Ins.  Co.  v.  Hanna,  81  T.  487  (17  S.  W.  Rep.  35). 

5  W.  U.  Tel.  Co.  v.  Rosentreter,  80  T.  406  (16  S.  W.  Rep.  25).  In  an  action  on  a 
policy  issued  by  a  foreign  insurance  company,  service  was  made  on  one  to 
whom  blank  applications  had  been  delivered  by  persons  having  them  in  their 
possession,  and  who  forwarded  the  application,  delivered  the  policy  and  re- 
ceived and  paid  over  the  premium.  No  other  proof  of  agency  was  made.  The 
service  was  held  sufficient.  In  a  suit  on  a  judgment  rendered  by  a  court  of  an- 
other state,  the  sufficiency  of  the  service  of  the  citation  on  a  foreign  corpora- 
tion was  questioned,  and  it  was  held  that  the  law  of  the  forum  not  being  proved, 
it  will  be  presumed  to  be  the  same  as  the  law  of  this  state.  Southern  Ins.  Co. 
v.  Wolverton  Hardware  Co.,  19  S.  W.  Rep.  615. 

«R  S.  1224;  Alexander  v.  Stern,  41  T.  193. 


UI.-X    NY    PERSONAL   8KRM 


ners,  but  not  upon  all,  judgment  may  be  rendered  then-: 

the  jrartnership  and  against  the  partners  actually  served,  Init  no 

personal  judgment  or  execution  shall  bo  awarded  ;i^tinst  those  not 

served.1 

AVhen  the  suit  is  against  a  partnership,  one  member  only  of  the 
firm  beiiii,r  st-i  \f<l  with  process,  no  judgment  of  discontinuance  as 
to  the  m.Miiber  not  served  is  contemplated  by  the  statute.  The 
mere  taking  of  the  judgment  against  the  partnership,  and  against 
the  partner  served  with  process,  operates  an  abandonment  of  future 
proceedings  in  the  particular  action  against  the  partner  not  sc" 
by  execution  against  his  individual  property.  Such  a  practice  is 
not  in  contravention  of  article  1337  of  the  Revised  Statutes,  which 
provides  that  only  one  final  judgment  shall  be  rendered  in  any  cause.2 
The  court  of  appeals  has  held  that  a  final  judgment  cannot  be  taken 
against  the  firm  and  against  the  partner  served  without  disposing 
of  the  case  as  to  the  other  partner.3 

Service  on  one  member  of  the  firm  brings  the  firm  before  the 
court  so  that  a  judgment  may  be  rendered  against  it  binding  on 
the  partnership  and  against  the  individual  on  whom  service  is  made. 
"WTien  judgment  is  rendered  against  the  firm,  and  it  names  the 
member  served  as  a  defendant  against  whom  judgment  is  rendered 
individually,  and  the  appeal  bond  names  only  the  firm  by  the  firm 
name,  there  is  no  variance;  the  objectionable  words  in  the  judgment 
will  be  regarded  as  surplusage.  A  mistake  so  obvious,  which  could 
be  amended  by  the  record,  will  be  considered  as  amended.4 

A  judgment  against  the  firm  will  bind  the  partnership  real  es- 
tate, and  the  individual  land  of  the  member  of  the  firm  served  with 
process,  situate  in  the  county  where  it  is  recorded,  but  not  the  sepa- 
rate property  of  the  members  of  the  firm  not  served.* 

The  plaintiff  may  dismiss  as  to  the  partnership  and  take  judgment 
against  the  partner  served.  In  suits  against  partnerships  all  the 
members  are  necessary  parties,  although  service  of  citation  upon 
one  or  more  is  sufficient  to  support  judgment  against  the  firm  and 
the  defendant  served.  The  dismissal  of  suit  against  one  or  more 
mt'iul.K-rs  of  the  firm  operates  as  a  dismissal  of  the  suit  against  the 
partnership.  Such  dismissal  leaves  the  remaining  individual  mem- 

»  R.  SL  1347;  Act  1858,  P.  IX,  art.  1514;  Rhodius  v.  Storey,  1  App.  G  O,  §  387; 
Farris  v.  Seisfield,  1  A  pp.  G  G,  g  330;  Stephenson  v.  Tenant,  1  App.  GL  G,  |  543. 

'Burnett  v.  Sulliv;ui.  .'vj  T.  535. 

'Stephenson  v.  Tenant,  1  App.  CX  G,  §  543. 

4  Hedges  v.  Armistead,  00  T.  376. 

*  Patten  v.  Cunningham,  63  T.  666.  As  the  land  sold  was  partnership  property 
of  the  firm,  Thompkins  &  McMurphy,  the  suit  being  against  its  members,  and 
the  service  good  against  Thompkins,  the  judgment  and  execution  passed  title 
in  the  property,  evi.-n  if  there  had  been  an  error  as  to  the  name  of  the  other 
partner.  Halscll  v.  McMurpliy,  86  T.  100  (33  &  W.  Rep.  6i7>- 
20 


306  CITATION   BY    PERSONAL    SERVICE.  [§  287. 

ber  or  members  to  answer  as  individuals.  After  dismissal  as  to 
members  of  several  partnerships  named  as  defendants  in  a  suit,  and 
upon  final  trial,  judgment  was  final  when  disposing  of  the  matters 
in  controversy  between  the  plaintiffs  and  the  remaining  defendants 
personal!}7.  It  was  not  necessary  that  any  entry  be  made  as  to  the 
partnerships.1 

When  suit  is  against  partners,  all  of  whom  have  appeared  in  the 
case,  and  two  of  them  have  pleaded  their  privilege  to  be  sued  in  the 
county  of  their  residence,  and  the  plea  is  sustained,  it  is  error  to 
dismiss  the  whole  case,  there  being  no  denial  of  the  alleged  partner- 
ship. Judgment  should  be  rendered  against  the  defendant  who 
filed  no  plea  of  privilege,  binding  his  personal  estate  and  the  part- 
nership property.2 

§287.  Return  of  citation. 

The  return  of  the  officer  executing  the  citation  must  be  indorsed 
on  or  attached  to  the  same ;  it  must  state  when  the  citation  was 
served  and  the  manner  of  service,  conforming  to  the  command  of 
the  writ,  and  must  be  signed  by  the  officer  officially.3 

Where  there  are  two  or  more  defendants  named  in  a  citation, 
and  service  is  made  on  only  one,  the  return  should  show  which  one. 
"On  the  within  named  defendant"  is  not  sufficient,  although  the 
citation  directs  service  on  one  only.4  If  the  return  shows  a  delivery 
of  a  copy  to  a  person  of  the  same  name  as  the  defendant,  it  is  suf- 
ficient, without  stating  a  delivery  to  the  defendant  "  in  person." 8 
If  there  is  more  than  one  defendant,  a  return  stating  a  delivery  of 
a  copy  or  of  copies  to  the  defendant  is  defective;  or  to  the  defend- 
ants A.  and  B.  a  true  copy.6  There  must  appear  to  have  been 
proper  service  on  each  defendant,  although  they  may  be  husband 
and  wife.7 

The  return  of  an  officer  on  a  citation,  which  states  that  the  writ 
was  served,  without  disclosing  the  mode  of  service,  does  not  state 
a  fact  necessary  to  assure  jurisdiction,  but  states  a  conclusion  as  to 

1  Frank  v.  Tatum,  26  S.  W.  Rep.  900  (87  T.  204).     Contra,  Frank  v.  Tatum,  23  S. 
W.  Rep.  311.    Service  upon  one  partner  after  dissolution  of  the  firm,  but  before 
its  liabilities  have  been  liquidated,  is  sufficient  to  authorize  a  judgment  avail- 
able against  the  partnership  property.     (Alexander  v.  Stern,  41  T.  193,  cited.) 
Tex.  &  St  L.  R.  R.  Co.  v.  McCaughey,  62  T.  271. 

2  Kemp  v.  Bank,  4  Civ.  App.  648  (23  S.  W.  Rep,  916);  Sanger  v.  Overmier,  64  T. 
57;  Alexander  v.  Stern,  41  T.  193. 

'R.S.  1225,4905. 

<Stephenson  v.  Kellogg,  1  App.  C.  C.,  §  542;  Willis  v.  Bryan,  83  T.  429;  Rodg- 
ers  v.  Green,  33  T.  661;  Thompson  v.  Griffis,  19  T.  115. 

•  Brooks  v.  Powell,  29  S.  W.  Rep.  809. 

6Holliday  v.  Steele.  65  T.  388;  King  v.  Goodson,  42  T.  152;  Randolph  v.  Schwin- 
gle.  27  S.  W.  Rep.  955. 

•  Covington  v.  Burleson,  28  T.  368;  Holliday  v.  Steele,  65  T.  388;  Shelby  v.  Per- 
rin,  18  T.  515;  Fishback  v.  Young,  19  T.  515. 


-V    1^S9.]  CITATION     l\\     I'KK-MN.U.    HQCT1 

the  legality  of  an   executive  act,  of  which  the  law  does  not  make 
•  tlie  ju»Lre,  and  such  return  insufficient.1 

"The  time  and  manner  of  service"  does  not  mean  a  useless  nar- 
lative  of  facts,  but  only  that  a  copy  of  the  process  and  petition  were 
delivered  to  the  defendant  himself,  and  when.2     The  date  of  the 
e  must  he  stated  to  support  a  judgment  by  default.*    A  state- 
ment of  an  impossible  date  is  a  fatal  defect.4 

The  following  is  held  to  show  perfect  service:  " Executed  the 
I'.nh  day  of  February,  A.  D.  1887,  by  delivering  to  J.  M.  (Tallin,  the 
within  named  defendant,  in  person,  a  true  copy  of  this  writ,  to- 
gether with  the  accompanying  certified  copy  of  plaintilfs  petition."  "> 
The  return  must  be  signed  by  the  sheriff,6  and  must  show  that 

as  made  by  the  sheriff.  A  return  that  service  was  made  by 
delivering  to  a  corporation  by  and  through  A.,  its  vice-president,  is 
defective.7 

g  288.  Return  not  served. 

When  the  citation  has  not  been  served  the  return  must  show  the 
diligence  used  by  the  officer  to  execute  the  same  and  the  cause  of 
failure  to  execute  it,  and  where  the  defendant  is  to  be  found,  in  so 
far  as  the  officer  has  been  able  to  ascertain.8 

?  289.  Alias  process. 

When  any  process  has  not  been  returned,  or  has  been  returned 
without  service,  or  has  been  improperly  served,  it  is  the  duty  of 
the  clerk,  upon  application  of  any  party  to  the  suit,  his  agent  or  at- 
torney, to  issue  other  process  to  the  same  or  any  other  county,  as 
the  party  applying  may  direct.9 

While  original  process  should  be  directed  to  the  county  in  which 

•Continental  Ins.  Co.  v.  Milliken,  64  T.  48;  Ryan  v.  Martin,  29  T.  412:  Willie 
v.  Thomas,  22  T.  175;  Graves  v.  Robertson,  22  T.  130;  Thomason  v.  Bishop,  24  T. 
IHL 

»  Clark  v.  Wilcox.  31  T.  322;  Graves  v.  Drane,  66  T.  658  (1  &  W.  Rep.  905). 

» Whitaker  v.  Fitch,  25  T.  Sup.  308;  Sloan  v.  Batte,  46  T.  215;  Williams  v. 
iJownes.  30  T.  51. 

«  Llano  Imp.  Co.  v.  Watkins,  4  Civ.  App.  428  (23  S.  W.  Rep.  612). 

»Gatlin  v.  Dibrell.  74  T.  36  (11  S.  W.  Rep.  908).     Also  Hill  \.  Grant,  88  T 
Ryan  v.  Martin.  29  T.  412;  Belcher  v.  Wilson.  31  T.  139. 

"Thomas  v.  Goodman,  25  T.  Sup.  446.     The  return  on  all  process  served  by  a 
if  or  his  deputy  must  be  signed  by  them  officially.     R.  S.  4905. 
...  H.  &  S.  A.  Ry.  Co.  v.  Wave,  74  T.  47  (11  S.  W.  Rep.  918). 

8R. 

9R  S,  1227.  Win-re  the  suit  is  against  several  who  are  described  in  the  peti- 
tion as  residents  of  another  county,  luit  temporarily  in  the  county  in  which  suit 
is  brought  and  in  which  another  defendant  reside*,  if  there  be  no  service,  a  -u).- 

;.)  authorize  an  o/ms  citation  to  • 

of  tli.  of  the  defendants.     Crawford  v.  Wilcox,  6S  T.  1'JJ   •',  >.  W.  Rep. 

6J3). 


3  13  CITATION    BY    PERSONAL    SERVICE.  [§  290. 

•plaintiffs  pleadings  alleged  the  parties  to  be  served  reside,  it  is 
proper,  upon  the  existence  of  any  contingenc)^  mentioned  in  the 
above  article,  for  the  clerk  to  issue  alias  process  to  the  same  or  any 
other  county,  as  directed,  without  an  amendment  to  the  pleadings 
of  the  plaintiff;  and  when  such  process  is  found  in  the  record,  prop- 
erly served,  it  will  be  presumed  that  its  issuance  was  properly  di- 
rected.1 An  alias  citation  issued  to  a  county  before  an  amendment 
of  the  pleadings,  alleging  the  residence  of  the  defendant  to  be  in 
that  count}',  is  valid,  and  when  returned  with  proper  service  tlie 
defendant  is  in  default  if  he  fails  in  proper  time  to  answer.2 

§  290.  Time  of  service  of  citation. 

The  citation  must  be  served  before  the  return  day  thereof;  and 
in  order  to  compel  the  defendant  to  plead  at  the  return  term  of  the 
court,  the  citation  must  be  served  at  least  ten  days  before  the  first 
day  of  such  return  term,  exclusive  of  the  days  of  service  and  return. 
If  the  citation  be  issued  too  late,  or  if  it  cannot  be  served  at  least 
ten  days  before  the  first  day  of  such  return  term,  exclusive  of  the 
days  of  service  and  return,  the  officer  to  whom  it  is  delivered  must 
nevertheless  proceed  to  serve  it.  at  any  time  before  the  return  day 
thereof,  and  such  service  will  be  sufficient  to  compel  the  defendant  to 
plead  at  the  next  succeeding  term  of  the  court.3  Service  after  the 
return  day  is  void.4  The  full  number  of  days  must  intervene  be-, 
tween  the  day  of  service  and  the  first  day  of  the  term,  but  they 
need  not  be  secular  days;  Sunday  is  cgunted.  The  act  of  1836  pro- 
vided simply  that  the  citation  should  be  executed  at  least  five  days 
before  the  return  day  thereof,  but  the  ruling  has  always  been  that 
the  days  of  service  and  return  should  be  excluded.  The  statute 
was  amended  to  conform  to  that  ruling  in  1848.5 

The  judgment  will  be  reversed  where  the  record  shows  afflrma- 

1  Lauderdale  v.  Ennis  Stationery  Co.,  80  T.  496  (16  S.  W.  Rep.  308).    See  g  267, 
supra. 

2  Baber  v.  Brown,  54  T.  99.    The  petition  stated  the  residence  of  defendant  to  be 
in  W.  county,  and  citation  issued  to  that  county  and  was  returned  not  found.    A 
paper  was  then  filed  suggesting  his  removal  to  R.  county,  and  asking  for  a  cita- 
tion to  that  county,  and  it  was  held  that  the  citation  was  properly  issued  to  R. 
county,  and  that  it  was  not  necessary  to  serve  a  copy  of  the  suggestion  of  re- 
moval.    Gillmour  v.  Ford,  19  S.  W.  Rep.  442. 

3R.  S.  1228,  1229;  Acts  1891,  p.  94.  Articles  1228  and  1229  of  Revised  Statutes 
of  1879  (P.  D.,  1506,  Act  1848)  amended  by  changing  the  time  of  service  to  ten 
days  in  place  of  five  days  before  the  first  day  of  the  return  term. 

*Cobb  v.  Brown,  3  App.  C.  C.,  §  314;  Harrington  v.  Harrington,  4  App.  C.  C., 
§80. 

5  Wood  v.  City  of  Galveston,  76  T.  126  (13  S.  W.  Rep.  227).  And  see  Dickson 
v.  Burke,  28  T.  117;  Burleson  v.  Henderson,  4  T.  49;  Wood  v.  Smith,  11  T.  367; 
Fitzhugh  v.  Hall,  28  T.  558;  O'Connor  v.  Towns,  1  T.  107;  Wallace  v.  Crow,  1 
App.  C.  C.,  §  41;  Trevino  v.  Garza,  1  App.  C.  C.,  §  821. 


'!.]  CITAtloN     IJY     rKK.-'.NAI.    -  309 

lively  that  the  citation  was  not  served  ten  days  before  the  first  day 
of  the  term,  exclusive  of  the  days  of  service  and  return.1 

?'  291.  Notice  to  absent  or  non-resident  defendants. 

Where  the  defendant  is  absent  from  the  state,  or  is  a  non-resident 
of  the  state,  the  clerk  shall,  upon  the  application  of  any  party  to 
the  suit,  his  agent  or  attorney,  address  a  notice  to  the  defendant 
requiring  him  to  appear  and  answer  the  plaintiff's  petition,  at  the 
time  and  place  of  holding  of  the  court,  naming  such  time  and  place. 
The  notice  must  contain  the  requisites  of  an  ordinary  citation,  and 
must  be  accompanied  with  a  certified,  copy  of  the  petition.2 

The  notice  may  be  served  by  any  disinterested  person  competent 
to  make  oath  of  the  fact.3  The  service  is  made  by  delivering  a  copy 
to  the  defendant,  and  the  copy  of  the  petition.4  The  return  of  serv- 
ice must  be  indorsed  or  attached  to  the  original  notice,  and  must 
state  when  and  how  the  service  was  made.  It  must  be  signed  and 
sworn  to  by  the  person  making  the  service,  before  some  officer 
authori/ed  liy  the  laws  of  this  state  to  take  affidavits;  and  the  affi- 
davit  must  be  certified  under  the  hand  and  official  seal  of  the  offii -<T.  ' 

AVhere  a  defendant  has  been  served  with  such  notice  he  is  require.  1 
to  appear  and  answer  in  the  same  manner  and  under  the  same 
penalties  as  if  he  had  been  personally  served  within  this  state.8 

In  a  suit  for  divorce,  where  defendant  was  served  without  the 
>tate,  it  was  held  that  the  above  statutes  are  not  to  be  construed 
strictly  as  in  derogation  of  the  common  law,  but  liberally  and  with 
•w  to  effect  their  objects  and  promote  justice.  The  object  was 
to  provide  for  an  easier  and  less  expensive  method  of  effecting 
service  on  non-residents  than  by  publication,  and  at  the  same  time 
to  make  it  certain  that  the  defendant  has  full  notice  of  the  suit.  To 
carry  out  these  objects  we  must  give  the  statute  a  liberal  construc- 
tion, disregard  technicalities,  and  supply  by  intendment  what  the 
law.  in  other  cases,  would  presume  had  l>een  done.  The  application 
for  the  notice  will  be  presumed  when  it  has  issued,  and  especially 
when  it  has  been  asked  in  the  petition.  It  is  also  a  fair  presump- 
that  the  person  making  the  service  is  competent  and  disinter 
:  until  the  contrary  is  proved,  and  the  signature  and  seal  of  the 
officer  to  tin-  /'"/•<//  is  as  full  and  complete  a  certificate  as  is  re- 
quired by  the  statute.1 

kson  v.  Dowdy,  29  a  W.  Rep.  693.  . 

»RS.  1280. 

»R  a  12:51. 

«R  a  1282.    A  copy  of  the  petition  must  be  delivered.    Hopkins  v.  St;i 

*R&  1233. 
6R  a  iv 

ties  v.  Jones,  60  T.  4.~>1:  Rowan  v.  Shapard,  2  App.  C.  C.,  §  293;  Sun  Mut. 
ln>.  Co.  v.  Holland,  2  App.  C.  C..  §  444. 


310  CITATION   BY   PERSONAL   SERVICE.  [§  292. 

A  notice  not  under  seal,  and  which  misstates  the  date  of  the  filing 
of  the  petition,  will  not  support  a  judgment  by  default.1  Where 
the  notice  is  otherwise  sufficient  as  to  the  statement  of  the  nature 
of  plaintiff's  demand,  a  statement  that  the  suit  is  by  attachment  is 
sufficient  without  stating  that  an  affidavit  for  the  attachment  was 
filed.2 

Jurisdiction  is  acquired  by  the  notice  above  prescribed  in  a  suit 
to  divest  title  or  claim  to  real  estate.  The  proceeding  is  in  rern? 
A  personal  judgment  against  a  non-resident  served  out  of  the  state, 
there  being  no  appearance  or  answer  in  the  suit,  is  absolutely  void.4 
But  an  appearance  and  answer  or  plea  to  the  jurisdiction  is  a  waiver 
of  immunity  by  reason  of  non-residence.5 

§292.  Amendment  of  citation. 

A  citation  may  be  amended  by  affixing  the  seal  of  the  court.6 
Defects  caused  by  mere  clerical  mistakes  or  omissions  may  be  cured 
by  amendment.7  A  writ  which  varies  from  the  petition  may  be 
amended  by  the  petition ;  but  the  court  may  impose  terms  to  pro- 
tect the  opposite  party.8  The  defect  is  waived  by  failure  to  object.9 
Where  a  motion  to  quash  is  sustained  because  the  writ  does  not 
contain  the  names  of  all  the  parties,  it  is  proper  to  permit  an 

1  Leal  v.  Woodhouse,  2  App.  C.  C.,  §  101. 

2  Rowan  v.  Shapard,  2  App.  C.  C.,  §  295.    See  this  case  for  comments  of  the 
court  on  the  affidavit  to  the  return  of  service.     It  was  objected  that  the  return 
was  evidenced  by  an  affidavit  taken  before  a  notary  public  which  did  not  im- 
port in  any  manner  where  it  was  made,  no  venue  or  place  being  recited  in  the 
return  or  the  jurat;  also  that  the  affidavit  was  insufficient  for  the  want  of 
proper  official  designation  of  the  officer  before  whom  it  was  made.    But  because 
the  points  were  not  involved  in  a  prop?r  assignment,  no  decision  was  made.    In 
Blain  v.  McManus,  2  U.  C.  814,  it  is  held  that  the  validity  of  the  service  dees  not 
depend  upon  the  official  character  of  the  person  who  served  the  notice,  nor  upon 
any  other  test  of  qualification  than  that  prescribed  by  the  statute;  that  it  is 
within  the  discretion  of  the  court  to  permit  the  notice  to  be  withdrawn  from 
the  record  to  enable  the  person  who  made  the  return  to  correct  any  informality 
therein  (art.  1239,  R.  S.);  that  service  having  actually  been  made  on  a  defend- 
ant, it  is  not  void  by  reason  of  the  failure  to  have  an  affidavit  attached  to  the 
notice  setting  forth  the  required  facts,  but  that  the  defendant  is  bound  to  take 
notice  of  the  return  that  is  made,  and  of  the  order  of  court  allowing  the  notice 
to  be  withdrawn;  that  the  requirement  that  the  return  shall  be  attached  to  the 
notice  is  directory,  and  the  omission  to  attach  it  would  not,  of  itself,  warrant 
the  court  in  setting  aside  the  judgment  (citing  Cartwright  v.  Chabert,  3  T.  261). 

3  Hopkins  v.  State,  28  S.  W.  Rep.  225. 

4  Schmidt  v.  Stern.  1  App.  C.  C.,  §  92;  Hartley  v.  Conn,  4  Civ.  App.  299  (23  S.  W. 
Rep.  382);  Scott  v.  Streepy,  73  T.  547  (11  S.  W.  Rep.  532);  York  v.  State,  73  T.  651 
(11  S.  W.  Rep.  869);  Masterson  v.  Little,  75  T.  682  (13  S.  W.  Rep.  154). 

5  Hartley  v.  Conn,  4  Civ.  App.  299  (23  S.  W.  Rep.  382);  Penfield  v.  Harris,  7  Civ. 
App.  659  (26  S.  W.  Rep.  762). 

6  Winn  v.  Sloan,  1  App.  C.  C.,  §  1103;  Cartwright  v.  Chabert,  3  T.  261. 

7  Cartwright  v.  Chabert,  3  T.  261;  Kavanaugh  v.  Brown,  1  T.  481. 

8  Kavanaugh  v.  Brown,  1  T.  481. 
»  Cartwright  v.  Chabert,  3  T.  261. 


'3,  294.]  CITATION   in 

amendment.     If  the  clerk  fails  t<>  make  the  amendment,  and  judg- 
ment by  default  is  taken,  it  will  be  erroneous.1 

§  293.  Mistake  in  return. 

v  mistake  or  informality  in  a  return  may  be  corrected  by  the 
ollieer  at  any  time  under  the  direction  of  the  court.3  This  statute 
simply  atlirms  the  general  law.3 

Ji  294.  Acceptance  of  service. 

The  defendant  may  accept  service  of  any  process,  or  waive  the 
ice  or  service  thereof,  by  a  written  memorandum  signed  by 
him  or  his  duly  authorized  agent  or  attorney,  and  filed  among  the 
papers  of  the  cause;  and  such  waiver  or  acceptance  will  have  the 
same  force  and  etFect  as  if  the  citation  had  been  issued  and  served 
as  provided  by  law.*  The  statute  provides  that  such  acceptance  or 
waiver  of  process  shall  not  in  any  action  be  authorized  by  the  con- 

i  Wood  v.  Smith,  11  T.  367. 
»  R.  &  1339. 

»  Messner  v.  Lewis.  20  T.  221.  See  Porter  v.  Miller,  7  T.  53.  An  amendment 
of  a  return  made  by  the  sheriff  after  judgment,  and  when  the  court  is  not  in 
session,  is  a  nullity.  Thomas  v.  Goodman,  25  T.  Sup.  446.  The  defendant  sued 
out  ;i  writ  of  error  upon  a  judgment  rendered  by  default  upon  a  defective  re- 
turn of  service  of  the  citation.  Upon  motion  of  the  plaintiff  served  upon  the 
attorney  of  the  defendant  who  had  sued  out  the  writ  of  error,  the  district  court 
I»ermitted  tin-  sheriff  to  amend  his  return.  It  was  held  that  the  amendment 
was  improperly  allowed,  and  that  the  case  stood  as  if  the  amendment  had  not 
been  made;  that  the  plaintiff  should  have  filed  his  petition,  setting  forth  the 
and  asking  the  court  to  set  aside  the  judgment  erroneously  entered,  and 
then  have  IIM  I  the  defendant  served  as  in  an  original  suit,  when  the  latter  might 
have  pleaded  any  defense  he  had  to  the  action.  Thomson  v.  Bishop,  24  T. 
.'in-  case  having  been  reversed  and  remanded  for  further  proceedings, 
jud_':ie-i:t  i>y  < It-fault  was  again  rendered  against  the  defendant  On  error  it 
wa-  held  that  the  amendment  of  the  sheriff's  return  had  been  properly  made, 
anil  that  the  judgment  by  default  was  properly  rendered.  Thomson  v.  Hishnp. 
29  T.  154:  Hurke  v.  Thomson,  29  T.  158.  In  Smith  v.  Haynes.  80  T.  500.  judgment 
was  rendered  March  7.  1867.  The  petition  for  the  writ  of  error,  the  bond,  and 
citation  and  service  were  dated  March,  1867.  On  the  21st  of  August.  1867,  an 
anieii'liuent  of  the  judgment  was  made  under  the  provisions  of  the  statute. 
P.  D.  51.  It  was  held  that  no  proceedings  in  the  district  court  were  within  its 
ictiou  after  the  perfecting  of  the  writ  of  error.  See  Perdew  v.  Davis,  31 
T.  488. 

\Vhere  exceptions  to  the  sufficiency  of  the  service  of  citation  on  the  defend- 
ant had  been  overruled  and  exception  taken,  the  act  of  the  district  court  in 
.t  tin^  tin-  return  of  service  to  be  so  amended  as  to  show  legal  service  can- 
not be  considered  on  appeal,  when  such  permission  was  given  after  the  appeal 
was  perfected.    Continental  Ins.  Co.  v.  Milliken,  64  T.  46.    A  sheriff  set 
copy  of  a  first-amended  original  petition,  in  obedience  to  the  command  of  the 
writ,  but  his  return  stated  that  he  served  a  copy  of  the  original  ]N-tition.    There 
udgMient  by  default  and  motion  for  a  new  trial,  and.  on  motion  by  plaintiff 
and  «lue  notice  to  defendant,  the  -1,.  rilF  u  ;i^  required  to  amend  his  return.    This 
was  held  proper.     Canadian  &  Am.  Trust  <       r.  K  \  -  r.  7  Civ.  A  pp. 
*  R  S.  1240;  Hackworth  v.  English,  53  T.  488,  494. 


312  CITATION    BY    PERSONAL    SERVICE.  [§§  295,  29G. 

tract  or  instrument  of  writing  sued  on,  or  any  other  instrument 
executed  prior  to  the  institution  of  such  suit,  nor  be  made  until 
after  suit  brought.1  An  acceptance  of  service  and  waiver  of  process 
made  prior  to  the  institution  of  the  suit  will  not  support  a  judg- 
ment by  default.  An  acceptance  by  indorsement  on  the  petition  is 
not  permitted.2  A  party  by  a  waiver  of  process  waives  no  other 
right.3 

S  295.  Entering  appearance  in  open  court. 

The  defendant  may  in  person,  or  by  attorney,  or  by  his  duly  au- 
thorized agent,  enter  an  appearance  in  open  court.  Such  appear- 
ance must  be  noted  by  the  judge  upon  his  docket,  and  entered  in 
the  minutes,  and  will  have  the  same  force  and  effect  as  if  citation 
had  been  duly  issued  and  served  as  provided  by  law.4  Such  entry 
of  appearance  shall  not  be  authorized  by  the  contract  or  instrument 
sued  on,  or  any  instrument  executed  prior  to  the  institution  of  the 
suit.5 

An  appearance  is  said  to  be  strictly  voluntary  when  without  the 
service  of  process  a  defendant  in  some  manner  indicates  his  inten- 
tion to  submit  his  person  and  cause  to  the  jurisdiction  of  the  court.6 

§  296.  Answer  is  appearance. 

The  filing  of  an  answer  constitutes  an  appearance  of  the  defend- 
ant so  as  to  dispense  with  the  necessity  for  the  issuance  or  service 
of  citation  upon  him.7  Where  a  defendant  answers  in  a  suit,  it  is 
equivalent  to  service  of  citation  upon  him,  although  he  afterwards 
withdraws  his  answer.8  The  fiing  of  an  answer  waives  alleged  de- 
fects in  the  service.9  A  defendant  who  files  any  defensive  pleading 
makes  such  an  appearance  as  gives  the  court  jurisdiction  over  his 
person  as  fully  as  would  the  issuance  of  proper  citation  and  its 
proper  service  within  the  state.  The  purpose  for  which  an  appear- 
ance is  made  is  unimportant,  as  is  the  intention  with  which  it  is 
made,  if  the  act  done  is  one  which  the  statute  declares  is  such  as 
gives  to  the  court  jurisdiction  to  render  a  personal  judgment  against 
the  person  appearing.10 

1  Acts  1885,  p.  33;  R  S.  1349.    See  Lidiker  v.  Ratto,  2  App.  C.  C.,  §  116,  decide  1 
before  the  adoption  of  this  statute,  on  the  sufficiency  of  a  warrant  of  attorney. 
-  MrAnelly  v.  Ward,  72  T.  342  (12  S.  W.  Rep.  206). 

3  Glenn  v.  Shelburne,  29  T.  125;  Kennedy  v.  McCoy,  46  T.  220.     As  to  the  right 
of  a  married  woman  to  accept  service  of  process,  when  sued  with  her  husband, 
see  Laird  v.  Thomas,  22  T.  276. 

4  R.  S.  1241. 

5R  S.  1349;  Acts  1885,  p.  33. 
« York  v.  State,  73  T.  651  (11  S.  W.  Rep.  869). 
7R  S.  1242. 

^  Wheeler  v.  Roberts,  2  App.  C.  C.,  §  127. 
9  Randall  v.  Meredith,  11  S.  W.  Rep.  170. 
»0  York  v.  State,  73  T.  651  (11  S.  W.  Rep.  869). 


§  297.]  CITATION   BY    n:i:-'NAL   SERTICK.  313 

Defendant  in  attachment  appeared  and  rxrepti-d  t<>  the  juri 
lion  of  the  court,  and  moved  to  <|tiash  the  attachment,  stating  that 
he  appeared  for  the  purposes  expressed  therein  alone;  and  in  his 
other  answer  he  stated  that  it  was  filed  without  any  intention  of 
waiving  his  other  pleas,  and  that  ho  thus  answered  to  the  merits 
only  in  the  event  they  should  be  overruled.  This  pleading  <>f  the 
defendant  entered  an  appearance,  and  gave  the  court  jurisdiction 
over  his  person.1  The  same  effect  is  given  to  a  plea  to  the  jurisdic- 
tion by  a  non-resident;8  as  in  case  of  a  plea  by  a  foreign  corpora- 
tion, alleging  that  the  person  on  whom  service  was  made  was  not 
its  agent  —  such  an  appearance  is  an  appearance  for  all  purposes  at 
the  next  term.* 

§  297.  Quashing  citation  on  motion. 

Where  the  citation  or  service  thereof  is  quashed  on  motion  of 
the  defendant,  the  cause  may  be  continued  for  the  term,  but  the 
defendant  shall  be  deemed  to  have  entered  his  appearance  to  the 
succeeding  term  of  the  court.4  The  statute  compels  the  construct- 
ive appearance  of  the  defendant  to  the  merits  at  the  next  term, 
whether  his  motion  be  sustained  or  not.  If  the  motion  to  quash  be 
properly  overruled,  the  defendant  is  in  court  from  the  time  of  the 
service;  if  improperly  overruled,  and  the  case  is  continued,  he  has 
obtained  all  the  benefit  that  could  have  resulted  if  his  motion  had 
been  sustained ;  and  the  error  being  immaterial,  it  would  afford  no 
ground  for  reversing  a  judgment  afterwards  rendered,  and  no  con- 
stitutional  right  of  the  defendant  is  infringed  thereby.  The  rule 
tends  to  a  speedy  administration  of  justice,  and  the  saving  of  costs 
in  litigation,  and  should  be  liberally  construed.5 

The  statute  applies  to  a  non-resident  served  without  the  state. 
If  the  motion  to  quash  or  to  set  aside  an  attachment  be  sustained, 
the  effect  is  only  to  abate  the  writ;  it  does  not  operate  a  disc. 

>Grizzard  v.  Brown,  2  Civ.  App.  584  (22  S,  W.  Rep.  252). 

'Cunningham  v.  State,  U  S.  W.  Rep.  871;  Pace  v,  Potter,  20  S.  W.  R«-j 
85  T.  47a 

'Fairbanks  v.  Blum,  2  Civ.  App.  479  (21  S.  W.  Rep.  1009);  /Etna  Ins.  . 
Hanna.  81  T.  487  (17  S.  W.  Rep.  35):  Hartley  v.  Conn,  4  Civ,    \ir   -'!".•  (88  S.  W. 
Rep.  3*-J):  lYnlicl.l  v.  Harris.  7  Civ.  App,  659  (26  8.  W.  Rep.  768);  Am.  L.-i:ion  <>f 
Honor  v.  I  .armour,  81  T.  71  (16  S,  W.  Rep.  633);  Mex.  Out.  Ky.  Co.  v.  Cliarman, 
•Jl  S.  \V.  KVp.  «i.V<;  St.  L.,  A,  &  T.  Ry.  Co.  v.  Whitlcy.  7?  T.  1W  .  i:<  S.  \\ 
"\VhrnMlftVn.lantin  a  suit  to  recover  personal  property  i-M-rut.-il  a  r--plr\v  bond, 
employed  attorneys  to  defend  the  suit,  and  tin-  attorneys  a«v«-ptrd  p 
certain  notice  in  the  cause  and  waived  the  filing  of  certain  record  evid. 
be  used  on  tin-  trial,  it  was  held  that  this  was  not  such  an  app-  aranr,-  a>  would 
run-  a  defective  citation  — void  for  want  of  a  seal.    Wrll*  v.  Ann  s  Iron  \\ 

;{  App.  c.  r..  J»-.M.MI. 

<R.  S.  KM::-  Kalili  v,  Rogers,  67  T.  335  (3  8.  \V.  K- -\>.  :J03);  York  v.  State,  73  T. 
051  (11  S.  \V.  |{,.,,.  MU9);  Jones  v.  K«-ith.  •,'-'  S.  \V.  1:-]..  77:{. 

»LVnt.  tf  Mt.nt.  Ky.  Co,  v,  Morris,  68  T,  49  (3  S.  W.  K.  p.  107). 


oii  CITATION   BY   PERSONAL    SERVICE.  [§§  298,  299. 

of  the  suit,  but  brings  the  defendant  into  court  for  all  purposes  at 
the  succeeding  term ; l  or  the  plaintiff  may  have  service  of  citation 
within  the  state,  if  the  defendant  can  be  reached.2  An  appearance 
by  a  non-resident  to  object  to  the  legal  effect  of  constructive  serv- 
ice does  not  waive  the  privilege  as  to  venue,  nor  subject  the  defend- 
'  ant  to  a  trial  at  the  first  term  after  such  service.3 

g  298.  No  new  citation  in  case  of  reversal  on  appeal. 

Where  the  judgment  is  reversed  on  appeal  or  writ  of  error  taken 
by  the  defendant  for  the  want  of  service,  or  because  of  defective 
service  of  process,  no  new  citation  shall  be  issued  or  served,  but 
the  defendant  shall  be  presumed  to  have  entered  his  appearance  to 
the  term  of  the  court  at  which  the  mandate  shall  be  filed.4 

S  299.  No  judgment  without  service. 

No  judgment  shall  in  any  case  be  rendered  against  any  defend- 
ant unless  upon  service,  or  acceptance,  or  waiver  of  process,  or  upon 

iFeibleman  v.  Edmonds,  69  T.  334  (6  S.  W.  Rep.  417):  Sam  v.  Hockstadler,  76 
T.  162  (13  S.  W.  Rep.  535);  Fairbanks  v.  Blum,  2  Civ.  App.  479  (21  S.  W.  Rep.  1009). 

2Feibleman  v.  Edmonds,  69  T.  334  (6  S.  W.  Rep.  417). 

»  St.  L.,  A.  &  T.  Ry.  Co.  v.  Whitley,  77  T.  126  (13  S.  W.  Rep.  853).  When  a  cita- 
tion or  service  thereof  is  quashed  on  motion  of  defendant,  tho  case  may  be  con- 
tinued for  the  term;  but  the  defendant  will  be  deemed  to  have  entered  his 
appearance  at  the  succeeding  term  of  the  court.  If  the  motion  to  quash  is  not 
acted  on  during  the  term,  but  is  passed  to  another  term  without  action,  the  de- 
fendant will  be  treated  as  having  appeared  at  the  next  term.  The  consequences 
as  to  service  by  notice  being  the  same  under  the  statute  as  service  by  citation, 
the  effects  of  a  motion  to  quash  the  two  species  of  process  must  be  the  same  as 
to  constructive  appearance  at  the  term  following.  This  held  without  deciding 
tliat  an  appearance  by  a  non-resident  of  Texas  for  the  purpose  of  objecting  to 
the  right  of  a  Texas  state  court  to  bring  him  within  its  jurisdiction  by  notice 
served  without  the  state  can  so  bring  him  within  the  jurisdiction  of  the  state 
as  to  require  him  to  answer  at  the  succeeding  term.  Feibleman  v.  Edmonds,  69 
T.  334  (6  S.  W.  Rep.  417). 

A  motion  to  quash  a  citation  for  alleged  defects  therein,  on  which  no  action 
of  the  district  court  was  procured  until  two  terms  had  intervened,  presents  no 
question  which  will  be  considered  on  appeal;  for  under  the  statute,  if  either  the 
citation  or  the  service  thereof  had  been  acted  on  and  held  defective  at  the  term 
when  the  motion  was  filed,  under  the  statute  the  defendant  would  have  been 
regarded  as  having  made  his  appearance  at  the  succeeding  term.  When  no  ex- 
cuse is  shown  for  not  procuring  the  action  of  the  district  court  on  a  motion  to 
quash  a  citation  for  defects  therein  during  the  term  at  which  it  is  filed,  the  right 
to  urge  the  objection  at  a  subsequent  term  is  waived.  L  &  G.  N.  Ry.  Co.  v. 
Brett,  61  T.  483. 

A  defendant  filed  a  motion  to  quash  service,  and  an  answer  which  expressly 
alleged  that  it  was  not  to  be  considered  as  in  the  case  unless  the  motion  was 
overruled.  The  motion  was  sustained,  and  it  was  held  that  the  court  was  au- 
thorized to  hold  that  defendant  was  without  pleadings,  and  to  render  judgment 
by  default  at  the  next  term.  London  Assurance  Co.  v.  Lee,  66  T.  247  (18  S.  W. 
Rep.  508). 

A  motion  to  quash  comes  too  late  after  a  plea  to  the  merits.  Brown  v.  State, 
30  T.  282:  Cook  v.  Southwick,  9  T.  615. 

4  R.  S.  1244. 


§  291X]  CM  r    PERSONAL   SERVICE. 

an  appearance  by  the  defendant,  as  prescribed  in  this  chapter,  ex- 
cept uhore  otherwise  expressly  provided,  by  law.1     Servu • 
process  is  of  no  offer 

AVhen  on  appeal  from  a  judgment  by  default,  the  record  fails  to 
show  affirmatively  either  service  of  process  on  the  defendant,  or 
waiver  tin-roof,  or  an  appearance  entered  by  him  in  the  court  below, 
the  judgment  will  be  reversed.3  If  the  record  disclose  service,  it 
will  cure  a  defect  in  this  particular  in  the  judgment ; 4  it  is  held  that 
the  record  must  show  service  outside  of  the  recital  in  the  judgment  to 
support  a  judgment  by  default.5  To  determine  whether  the  record 
shows  affirmatively  that  there  was  proper  service,  the  whole  of  it 
must  be  considered  together.  The  recital  in  the  judgment,  which 
is  the  last  act  of  the  court  in  the  case,  reciting  that  the  defendant 
was  "duly  cited  with  process,"  imports  in  a  collateral  proceeding 
absolute  verity.9 

In  a  collateral  attack  upon  a  judgment  if  the  judgment  itself  finds 
and  recites  a  valid  citation  and  service,  that  controls  the  balance  of 
the  record;  otherwise  if  it  recites  an  invalid  citation  or  names  the 
precise  character  thereof.  If  the  judgment  is  silent  as  to  service, 
then  the  whole  record  may  be  examined.  This  obtains  in  judgments 
of  courts  of  general  jurisdiction.7  A  domestic  judgment  of  a  court 
of  general  jurisdiction  upon  a  subject-matter  within  the  ordinary 
scope  of  its  power  is  entitled  to  such  absolute  verity  that  in  a  collat- 
eral action,  even  where  the  record  is  silent  as  to  notice,  the  pre- 
sumption, when  not  contradicted  by  the  record  itself,  that  the  court 
had  jurisdiction  of  the  person  also,  is  so  conclusive  that  evidence 
••//  will  not  be  admited  to  contradict  it.8 

Judgment  against  a  person  without  legal  service,  acceptance  or 
waiver  of  process,  or  appearance,  is  void.9     But  the  validity  of  a 
judgment  against  parties  before  the  court,  properly  served,  is  not 
inl  l»y  the  fact  that  it  is  void  as  to  other  defendants  not  actu- 
ally served,10  unless  the  cause  of  action  be  indivisible  in  its  nature.11 

i  K.  S.  124.K  Wooldridge  v.  Griffith,  59  T.  290;  Glass  v.  Smith,  66  T.  548  (2  S.  W. 
Rep.  ! 

.  H.  &  S.  A.  Ry.  Co.  v.  McTiegue,  1  App.  C.  C.,  §§  437,  458. 
'Bates  v.  Casey,  61  T.  592. 

*  I'ij.kin  v.  K;uifm;m.  «•,>  T.  545. 

»Carlt..n  v.  Miller,  2  Civ.  App.  619  (21  &  W.  Rep.  697). 
•Treadway  v.  Eastlmrn.  .*,:  T.  •,'<•!»:  McAnear  v.  Epperson,  54  T.  220;  Da 
M.-.II.  7<iT.  :t!U  .7  S.  W.  Rep.  7 
*  tin  v.  Hums,  80  T.  676  (16  8.  W.  Rep.  :• 

-  Wilkerson  v.  Schoonmakt-r.  77  T.  615  (14  S.  W.  Rep.  223):  Fitch  v.  Bov. 
T.  838;  Tennell  v.  Breedlove,  54  T.  540;  Lawl.-r  v.  Whit,-.  JT  T 

tt  v.  Kaufman.  ,''•  T.  Sup.  884;  Wooldridge  v.  Griffith,  59  T.  290;  Glass  v. 
Smith.  W  T.  ."its  r,>  S.  \V.  Rep.  195);  Roller  v.  Reid,  87  T.  69  (tB  x  \V.  Rep.  1060). 
WHollis  v.  Dashi.-ll.  :>•,'  T.  1-7. 
»  Hulme  v.  Janes,  6  T.  21,'. 


316  CITATION    BY    PEJRSOJSAL   SEE  VICE.  [§  300. 

It  is  a  rule  founded  in  the  first  principles  of  natural  justice,  older 
than  written  constitutions,  that  a  citizen  shall  not  be  deprived  of 
his  life,  liberty  or  property  without  an  opportunity  to  be  heard  in 
defense  of  his  rights.  The  constitutional  guaranty  of  due  process 
of  law  has  its  foundation  in  this  rule.1  A  decision  of  a  judicial  nat- 
ure, conclusively  deciding  upon  the  property  rights  of  a  citizen,  and 
imposing  a  burden  upon  him,  can  only  be  given  in  a  proceeding  of 
which  he  has  notice;  without  such  notice  there  can  be  no  due  pro- 
cess of  law.2  This  principle  is  fundamental.3  It  is  sufficient  in  all 
cases  if  the  law  affords  an  opportunity  to  be  heard ;  it  is  within  the 
power  of  the  legislature  to  determine  the  form,  time  and  manner  of 
the  notice  to  be  given,  and  the  mode  of  service.4 

§  300.  Objections  to  citation,  service  and  return, 

A  defendant  is  not  required  to  obey  a  void  process ;  but  if  merely 
defective,  it  brings  him  into  court,  and  if  he  does  not  take  his  ex- 
ception at  the  proper  time  he  cannot  urge  the  defect  on  appeal  or 
error.5  In  another  case  it  is  held  that  where  the  service  appears 
from  the  record  to  be  defective,  it  is  not  incumbent  on  the  defend- 
ant to  appear  and  make  the  objection  in  the  court  below ;  he  may 
take  advantage  of  it  by  writ  of  error.  The  service  in  this  case  was 
void,  however,  no  copy  of  the  petition  being  delivered  to  a  defend- 
ant served  out  of  the  county.8  If  the  return  is  insufficient,  and 
judgment  goes  by  default,  the  judgment  is  erroneous,  and  will  be 
reversed  on  error,  although  the  entry  of  the  judgment  recite  that 
the  defendant  was  legally  served.7 

The  general  rule  of  law  is,  that  any  omission  of  the  requirements 

1  Stuart  v.  Palmer,  74  N.  Y.  183  (Myer  on  Vested  Rights,  §§  763, 766). 

2Kuntz  v.  Sumption,  117  Ind.  1, 

8  Gjlmore  v.  Sapp,  100  111.  297;  Jack  v.  Thompson,  41  Miss,  49;  State  v.  City  of 
Plainfield,  38  N.  J.  L,  95;  State  v.  Mayor,  etc,  of  Jersey  City,  4  Zab.  662  (Myer 
on  Vested  Rights,  §§  768,  769). 

<  Matter  of  Application  of  Village  of  Middleton,  82  N,  Y,  196;  Matter  of  Laying 
Out  Livingston  Street,  82  N.  Y.  621;  Pope  v.  Terre  Haute  Car  Manuf.  Co,,87N.  Y. 
137  (Myer  on  Vested  Rights,  gg  779,  782), 

5  Cave  v.  City  of  Houston,  65  T.  619;  Grain  v.  Griffls,  14  T.  358, 

6  James  v.  Watson,  2  U.  C.  741, 

"  Roberts  v.  Stockslager,  4  T.  350.  On  writ  of  error  it  was  assigned  that  the 
citation  was  insufficient  to  support  the  judgment.  No  citation  was  copied  into 
the  transcript  The  judgment  recited  that  the  defendant  was  duly  oited.  It 
was  held  evident  from  the  entire  record  that  the  defendant  had  been  cited  and 
the  defect  in  the  service  was  not  shown.  There  was  therefore  no  ground  for 
reversal  for  want  of  sufficient  service,  Hamilton  Mill  and  Gin  Co,  v,  Sinker,  74 
T.  51  (11  S,  W.  Rep.  1056), 

The  petition  was  filed  on  February  26,  1892,  and  citation  issued  the  same  day. 
The  return  thereon  showed  that  it  came  to  hand  on  February  19,  1892,  and  was 
served  on  February  20, 1892,  The  sheriff  and  clerk  being  of  equal  dignity  before 
'the  court,  it  is  held  that  in  the  conflict  between  their  recitals  there  was  nothing 
to  affirmatively  show  proper  service.  State  Fair  an.d  Pallas  Exposition  v,  Lvon, 
5  Civ,  App.  383  (24  S,  W,  Rep,  328), 


§  301,]  CJTATIOX   BY    PERSONAL   SERVICE. 

of  the  la\v  as  to  the  citation,  and  the  mode  and  manner  of  its  re- 
turn, will  cause  a  reversal  of  a  judgment  by  default,  because  the 
itions  on  the  subject  are  imperative,  and  must  be  strictly  f«>l- 
1.  no  inference  or  presumption  being  allowed  to  supply  appar- 
ent defects.1  It  is  held  that  a  citation  which  gives  the  date  of  its 
nee  and  of  the  filing  of  the  petition  as  of  a  time  subsequent  to 
the  date  of  its  service  and  return  is  defective,  but,  if  otherwise  suf- 
ficient, that  the  objection  cannot  be  made  for  the  first  time  on 
appeal.  A  distinction  is  observed  between  citations  that  are  void 
and  those  that  are  only  defective,  and,  while  admitting  that  it  i , 
difficult  to  reconcile  the  cases,  it  is  held  to  be  the  better  rule  to  re- 
quire a  defendant  to  make  his  objections  in  the  court  below  on 
account  of  defects  which  do  not  make  the  process  void  —  such  de- 
fects as  may  be  amended.  The  rule  would  seem  to  be,  then,  that 
process  merely  defective,  and  therefore  amendable,  brings  the  de- 
fendant into  court  to  urge  his  objections  if  he  chooses  to  do  so,  but 
that  he  need  not  notice  void  process,  and  may  urge  his  objections 
for  the  first  time  on  appeal.  The  decisions  are  not  uniform.2 

§  301.  False  return. 

A  sheriff  who  makes  a  false  return  of  any  process  may  be  pun- 
ished as  for  a  contempt,  and  is  liable  in  damages  to  any  person  in- 
jured by  such  false  return.1 

AVhere  a  sheriff's  return  is  in  form  full  and  sufficient,  it  requires 
more  than  the  testimony  of  one  witness  to  contradict  it  on  a  mo- 
tion to  set  aside  a  judgment  by  default.4  The  evidence  of  falsity 
need  not  be  uncontroverted ;  but  the  rule  is  that  there  must  be  a 
preponderance  of  evidence.5  It  must  be  clear  and  satisfactory,  and 
on  a  cross-bill  to  set  aside  a  judgment  by  default  in  favor  of  one 
who  fraudulent!}*  procured  the  record  to  show  service,  it  was  held 
that  parol  evidence  contradicting  the  officer's  return  was  admissi- 
ble.6 A  party  filing  a  plea  in  abatement,  alleging  that  he  was  not 
served  with  a  true  copy,  must  appear  and  support  the  plea  or  judg- 
ment will  go  against  him.7 

1L  &  G.  N,  Ry.  Co.  v.  Pape,  1  App.  C.  C.,  §  242;  Graves  v.  Le  Geirse,  1  App. 
C.  C.,  g  812,  citing  Underbill  v,  Lockett,  20  T.  180;  Graves  v.  Robertson,  -(J  T. 
180;  Tullis  v.  Scott,  38  T.  588. 

*  Marshall  v.  Marshall,  30  S.  W.  Rep.  978.  It  is  held  in  some  of  the  early  cases, 
that  if  the  service  appear  from  the  record  to  be  defective,  it  is  not  incumbent 
on  the  defendant  to  appear  and  object  in  the  court  below,  but  that  he  may  raise 
the  objection  upon  error.  Burleson  v.  Henderson,  4  T.  49;  Frosh  v.  Schlumpf, 
2  T.  422;  Norvell  v.  Garthwaite,  25  T.  583;  Covington  v.  Burleson,  26  T.  868. 

*RS.4901. 

«Gatlin  v.  Dibrell,  74  T,  36  (11  S.  W.  Rep,  908);  Wood  v.  Galveston,  76  T.  126 
W.  Rep.  227). 

»Kempner  v.  Jordan,  7  Civ.  App.  275  (26  S.  W.  Bep.  870), 

6  Randall  v.  Collins,  58  T.  231. 

'  McKellar  v.  Lamkin,  22  T.  244. 


CHAPTER  XIII. 


CITATION  BY  PUBLICATION. 


302.  When  authorized. 

303.  Contents   of  citation;    publica- 

tion. 
804.  Unknown  heirs. 

305.  Publication  in  other  cases. 

306.  Against  residents  of  Texas. 

307.  Time  of  publication. 

308.  Answer  filed,  when;  appearance. 


§  309.  Return  of  citation. 

310.  Judgment  in  suits  by  publica- 

tion. 

311.  Statement  of  the  evidence. 

312.  What  judgment  authorized. 

313.  Presumptions  in  aid  of  the  pro- 

ceedings. 


g  302.  When  authorized. 

"Where  any  party  to  the  suit,  his  agent  or  attorney,  shall  make 
oath  at  the  time  of  instituting  the  suit,  or  at  any  time  during  its 
progress,  that  the  party  defendant  is  a  non-resident  of  the  state,  or 
that  he  is  absent  from  the  state,  or  that  he  is  a  transient  person,  or 
that  his  residence  is  unknown  to  the  affiant,  the  clerk  will  issue  a 
citation,  for  the  defendant,  addressed  to  the  sheriff  or  any  con- 
stable of  the  county  in  which  the  suit  is  pending.1 

In  suits  against  life  or  health  insurance  companies,  service  may 
be  made  by  publication  upon  the  filing  of  an  affidavit  to  the  effect 
that  no  one  holding  a  power  of  attorney  from  the  company  can  be 
found  within  the  state.2 

An  affidavit  is  necessary  to  support  the  judgment  where  the  trial 
is  ex  parted 

In  a  collateral  attack  upon  a  judgment  rendered  in  a  court  of 
competent  jurisdiction  upon  citation  by  publication,  that  a  defective 
affidavit  is  found  in  the  record,  and  no  other  sufficient  affidavit  is 
preserved  as  a  basis  for  the  issuance  of  the  citation  by  publication, 
will  not  affect  such  judgment.  Although  the  court  may  find  that 
what  purports  to  be  an  affidavit  is  no  affidavit  at  all,  still  if  it  is  not 
shown  that  an  affidavit  was  not  in  fact  made,  the  law  will  presume 
that  one  was  made,  where  the  judgment  is  attacked  collaterally. 
The  court  leaves  the  question  open,  whether  an  affidavit  is  neces- 
sary in  order  for  the  jurisdiction  of  the  court  to  attach.4 

1  R.  a  1235. 

2  R.  a  3070. 

1  Doty  v.  Moore,  16  T.  591.  Where  the  affidavit  stated  that  the  residence  of 
defendant  was  known  to  affiant,  instead  of  unknown,  "and  that  in  consequence 
personal  service  cannot  be  had  on  him,"  and  there  was  judgment  by  default,  it 
was  held  that  the  mistake  was  not  material.  Pierpont  v.  Pierpont,  19  T.  227. 

« Hardy  v.  Beaty,  84  T.  562  (19  S.  W.  Rep.  778). 


•3,  Sol.]  U.-N   i;v   i-ri;i.ic.\ 


An  affidavit  by  an  agent,  in  the  form  of  the  statute,  that  •"  the 
names  aiul  residences  of  the  heirs,"  etc.,  are  unknown,  is  sufficient 
us  liu<i>  f<»r  citation  by  publication.  It  is  not  necessary  for  atliant 
to  state  what  means  or  efforts  he  had  taken  to  ascertain  the  naiut-s, 
etc.  If  the  affidavit  for  publication  should  be  held  insufficient,  the 
judgment  could  not  be  attacked  collaterally  for  that  reason.  The 
I  that  -proper  service  had  been  made  by  publication  on  the 
is  conclusive  of  all  questions  as  to  service,  as  to  publi- 
cation of  citation  for  the  proper  length  of  time,  return,  and  every 
other  essential  to  make  and  complete  service  by  publication.  X»r 
can  a  judgment  be  so  attacked  because  rendered  upon  insufficient 
testimony.1 

?'  303.  Contents  of  citation;  publication. 

The  citation  must  contain  a  brief  statement  of  the  cause  of  ac- 
tion. It  commands  the  officer  to  summon  the  defendant  by  making 
publication  of  the  citation  in  some  newspape.  published  in  his 
county,  if  there  be  any  newspaper  published  therein,  but  if  not,  then 
in  any  newspaper  published  in  the  judicial  district  where  the  suit 
is  pending;  but  if  there  be  no  newspaper  published  in  such  judicial 
district,  then  it  must  be  published  in  the  nearest  district  to  the  dis- 
trict where  the  suit  is  pending.  It  must  be  published  once  in  each 
week  for  four  consecutive  weeks  previous  to  the  return  day  thereof.2 
The  citation  must  also  contain  the  requisites  of  process  prescribed 
by  article  1447  of  the  Revised  Statutes;'  that  is,  the  style  must  bo 
uThe  State  of  Texas,"  and  it  must  be  dated  and  tested  by  the  clerk, 
with  the  seal  of  the  court  impressed  thereon,  and  the  date  of  issu- 
ance must  be  noted  thereon. 

;i  304.  Unknown  heirs. 

Where  any  property  of  any  kind  in  this  state  may  have  been 
granted  or  may  have  accrued  to  the  heirs,  as  such,  of  any  deceased 
person,  any  party  having  a  claim  against  them  relative  to  such 
property,  if  their  names  be  unknown  to  him,  may  bring  his  action 
against  them,  their  heirs  or  legal  representatives,  describing  them 
as  the  heirs  of  such  ancestor,  naming  him  ;  and  the  plaintiff,  his 
agent  or  attorney,  may,  at  the  time  of  instituting  the  suit,  or  any 
time  during  its  progress,  make  oath  that  the  names  of  such  heirs 
are  unknown  to  the  affiant,  and  the  clerk  \yill  issue  a  citation  for 

"Sloan  y.  Thompson,  4  Civ.  App.  419  (28  a  W.  Rep.  618). 

2R.S.  1235i 

*  R.  S.  1237.  A  designation  of  the  newspaper  by  the  clerk  may  be  rejected  as 
surplusage.  Rose  v.  Houston,  11  T.  823.  In  a  suit  to  set  aside  the  judgment  for 
fraud,  proof  of  publication  in  an  obscure  paper  is  admissible,  not  to  show  the  in- 
validity of  the  judgment,  but  to  show  fraud.  Heidenheimer  v.  Loring,  20  s.  \V. 
Rep.  89. 


320  CITATION    BY   PUBLICATION.  [§  305. 

such  heirs,  addressed  to  the  sheriff  or  any  constable  of  the  county 
in  which  the  suit  is  pending.  Such  citation  must  contain  a  brief 
statement  of  the  cause  of  action,  and  command  the  sheriff  or  con- 
stable to  summon  the  defendants  by  making  publication  of  the 
citation  in  some  newspaper  of  his  county,  if  there  be  a  newspaper 
published  therein,  but  if  not,  then  in  the  nearest  county  where  a 
newspaper  is  published,  once  in  each  week  for  eight  consecutive 
weeks  previous  to  the  return  day  of  such  citation.1  The  citation 
must  contain  the  requisites  prescribed  by  article  1447  of  the  Revised 
Statutes,2  as  to  style,  seal,  and  date  of  issuance. 

The  law  of  1848  limited  the  service  by  publication  on  unknown 
heirs  to  suits  where  their  ancestors  were  parties.  The  above  law 
authorizes  the  publication  without  regard  to  the  fact  whether  the 
ancestor  was  a  party  or  not,  and  was  not  repealed  by  the  "  Public 
Printing  Law  "  of  August  13,  1870.3 

£  305.  Publication  in  other  cases. 

Unknown  owners  in  partition  may  be  cited  by  publication,  the 
citation  to  be  published  in  a  newspaper  in  the  county  in  which  the 
writ  issued,  if  there  be  one,  and  if  not  then  in  the  nearest  county 
in  which  there  is  one,  for  four  successive  weeks  previous  to  the  re- 
turn day  of  the  process.4 

An  action  may  be  brought  by  any  person  claiming  a  right  or 
interest  in  or  to  any  property  in  this  state,  against  persons  who 
are  non-residents,  or  whose  residence  is  unknown,  or  who  are  tran- 
sient persons,  who  claim  an  adverse  estate  or  interest  in,  or  who 
claim  any  lien  or  incumbrance  on,  the  property,  for  the  purpose  of 
settling  the  question  of  right  or  title,  and  the  defendant  may  be 
cited  by  publication  as  in  ordinary  cases.5 

Notice  of  filing  interrogatories  may  be  given  by  publication;8 
also  in  suits  for  divorce."  A  state  has  the  right  to  determine  the 
status  of  its  own  citizens  toward  a  non-resident,  and  service  in  such 
a  case  may  be  made  by  publication,8  but  the  mode  of  procedure  pre- 
scribed by  the  statute  for  obtaining  jurisdiction  must  be  pursued  in 
order  to  invest  the  court  with  power  to  render  a  judgment  in  per- 
sonam* 

» R  S.  1236. 
2  R  S.  1287. 

s  Byrnes  v.  Sampson,  74  T.  79  (11  S.  W.  Rep.  1073);  Taliaferro  v.  Butler,  77 
T.  578  (14  S.  W.  Rep.  191).  See  Bailey  v.  Morgan,  13  T.  342, 

*  R  S.  3609. 

•Acts  1893,  p.  77;  R  S.  1504a,  15046. 

6  R  S.  2275.  2276,  2277. 

7  Hare  v.  Hare,  10  T.  355. 

«  Pennoyer  v.  Neff,  95  U.  S.  714. 

*  Stephens  v.  Stephens,  62  T.  337;  TrevinO  v.  Trevino,  54  T.  261. 


CITATION    BY    I'UULICA  .  321 

In  -.  in  addition  to  the  ordinary  citation  to 

tin-  pei •><.!!-  alleged  to  hold  possession,  the  clerk  is  required  i>< 

•ting  forth  briefly  the  contents  of  the  petition,  for  all 
•  us  interested  in  the  estate  to  appear  and  answer  at  the  next 
term  <>f  court,  which  citation  shall  be  published  as  required  in  other 
civil  suits.     If  no  person  appears,  judgment  by  default  is  entered 
in  behalf  of  the  state.1     The  record  must  show  that  notice  was 
D  by  publication  to  all  persons  interested  to  appear  and  show 
why  the  estate  should  not  vest  in  the  state.2     If  the  require- 
ment is  not  complied  with  the  court  has  no  jurisdiction.8    The  pub- 
lication is  not  made  for  unknown  owners,  as  intimated  in  Hanna  v. 
.  v  i  T.  664,  but  is  made  simply  for  all  persons  interested.     A 
citation  to  unki,<»ri,  //,  <'/•$  of  a  deceased  owner  is  not  sufficient.4 
The  want  of  publication  may  be  raised  for  the  first  time  on  motion 
for  a  rehearing.5 

.-'  306.  Against  residents  of  Texas. 

rice  by  publication  under  the  statute  will  authorize  a  personal 
judgment  against  one  who  is  a  citizen  of  the  state.  The  rule  will 
not  be  extended  beyond  the  doctrine  announced  in  Pennoyer  v. 
95  I  .  S.  714.  to  the  effect  that  service  by  publication  or  per- 
sonal  service  beyond  the  state,  not  followed  by  appearance  or 
waiver  of  process,  will  not  authorize  a  personal  judgment  av. 
a  non-resident.6  Such  service  is  effectual  against  a  resident  tem- 
porarily absent  from  the  state;7  and  it  was  so  held  before  this 
mode  of  service  was  authorized  in  such  cases  by  statute.8 

At  the  time  a  judgment  of  a  justice  of  the  peace  was  rendered 
:atute  authori/.ed  service  by  publication  on  persons  absent  from 
the  state  and  transient  persons.     The   record  showed  servi« 
publication,  and  it  was  held  that  it  would  not  be  presumed  from 
anything  outside  of  the  record  that  the  service  was  on  a  non- 
i'-nt  of  the  state.9    The  same  presumption  was  indulged  where 
-(•cord  of  the  county  court  showed  that  publication  was  made 
on  an  atfidavit  alleging  that  the  residence  of  the  defendant  was  un- 
knov. 

»  R.  S.  1824.  1826. 

ite  v.  Tenlon,  41  T.  249. 
'ieranders  v.  State,  64  T.  133. 

.nipt..!!,  :>  I  iv.  App.  410  (27  S.  W.  ! 
••Kllis  v.  Staf,  ::  Civ.  Aj.p.  17"  ,21  a  W.  Rep.  66;  24  S.  W.  Rep.  C60). 

rthrnift  v.  Oliver,  74  T.  162  (11  S.  W.  I^-j..  1121);  Martin  v.  Burns,  80  T. 
676(168.  W.  Rep.  1 

••rnan.l.-x  1  S.  \V.  K.  p.  1 49X 

"Grassmeyer  v.  BftMOD,  1-  T.  YJI.  1-*  T.  798;  I-iwK-r  v.  White.  27  T.  2.V). 
'Traylor  v.  I.i.l.  .  7  S.  YV.  Rep.  58. 

"Martin  v.  Burns,  80  T.  676  (10  S.  W.  Rep.  1072).    The  action  was  for  debt  in 
a  county  court  for  a  sum  within  its  jurisdiction.     Ujxjn  affidavit  that  the  resi- 
21 


322  CITATION   BY   PUBLICATION.  [§  307^ 

§  307.  Time  of  publication. 

The  general  provision  of  the  statute  requires  publication  once  in 
each  week  for  four  consecutive  weeks  previous  to  the  return  day.1 
The  same  time  is  required  in  suits  to  quiet  title  against  non-resident, 
unknown  or  transient  persons ;  -  also  in  suits  for  partition  against 
unknown  owners.3  The  general  provision  for  proceedings  against 
unknown  heirs  requires  publication  once  in  each  week  for  eight 
consecutive  weeks  previous  to  the  return  day.4 

Where  four  weeks'  publication  is  required,  twenty-eight  days 
must  elapse  between  the  date  of  the  first  publication  and  the  re- 
turn day,  exclusive  of  both  dates.5  If  the  required  number  of  in- 
sertions cannot  be  made  before  the  return  day,  but  the  publication 
for  the  prescribed  time  is  nevertheless  made,  it  is  held  that  this  will 
be  sufficient  to  require  an  appearance  at  the  next  succeeding  term.6 

dence  of  the  defendants,  alleged  to  be  partners,  was  unknown,  citation  by  pub- 
lication was  duly  made.  Judgment  against  the  firm.  Execution  issued,  and 
there  was  a  levy  and  sale  of  land  owned  by  one  of  the  defendants,  and  it  was 
held  that  such  sale  passed  the  title.  Service  of  citation  by  publication  against 
defendants  alleged  to  be  partners  is  sufficient  to  support  a  judgment  against 
the  partners,  and  sale  of  the  property  of  any  of  the  firm  is  valid  without  other 
actual  service.  A  partner  not  actually  cited  is  not  bound,  and  a  personal  judg- 
ment cannot  be  entered  against  him;  but  if  he  is  in  fact  a  resident  of  the  state 
and  is  mentioned  in  the  writ,  he  is  actually  served  by  the  publication  of  the 
writ 

The  law  in  force  in  1869  (P.  D.  1190)  authorized  citation  by  publication  in  a 
justice's  court  only  upon  affidavit  that  the  defendant  was  absent  from  the  state, 
or  that  he  was  a  transient  person,  and  it  was  held  that  a  judgment  by  default, 
based  on  a  citation  by  publication,  made  on  an  affidavit  that  the  residence  of 
the  defendant  was  unknown  to  affiant,  was  void,  that  fact  appearing  upon  the 
record,  and  might  be  attacked  collaterally.  Such  service  should  be  strictly  con- 
strued. A  sale  of  land  made  under  execution  based  on  such  a  judgment  could 
not  divest  title.  The  owner  would  not  be  bound  to  refund  the  purchase-money 
paid  before  being  entitled  to  recover  in  a  suit  against  a  purchaser  in  possession, 
nor  could  the  purchaser  sustain  limitation  of  three  years  under  his  deed.  Ste- 
gall  v.  Huff,  54  T.  193. 

1 R  S.  1235. 

2  Acts  1893,  p.  77;  R  S.  15046. 

s  R  S.  3609. 

<R  S.  1236;  Fowler  v.  Simpson,  79  T.  611. 

»St«phenson  v.  T.  &  P.  R  Co.,  42  T.  162;  Hill  v.  Faison,  27  T.  428;  Davis  v. 
Robinson,  70  T.  394  (7  S.  W.  Rep.  749). 

«Hill  v.  Baylor,  23  T.  261;  O'Leary  v.  Durant,  70  T.  409  (11  S.  W.  Rep.  116); 
Tobar  v.  Losano,  6  Civ.  App.  698.  A  sheriff's  return  to  a  citation  by  publication 
to  unknown  heirs,  which  states  the  date  when  the  writ  was  received,  and  that 
he  caused  it  to  be  published  in  a  newspaper  (naming  it),  which  was  published 
in  the  county  of  the  venue  "  for  eight  weeks  successively,"  without  showing 
when  it  was  executed,  is  not  in  compliance  with  the  statute.  If  eight  weeks 
did  not  elapse  between  the  date  of  the  issuance  of  the  citation  and  the  begin- 
ning of  the  term  at  which  the  writ  was  returned,  such  return  would  not  affect 
its  validity  as  citation  to  the  succeeding  term.  O'Leary  v.  Durant,  70  T.  409 
(11  S.  W.  Rep.  116).  From  January  25  to  February  22  is  sufficient  to  perfect 
citation  by  publication  where  the  statute  requires  three  weeks.  Traylor  v. 
Lide,  7  S.  W.  Rep.  58. 


§§  308,  309.]  CITATION  BY  PUBLICATION.  323 

§  308.  Answer  filed,  when;  appearance. 

In  all  cases  in  which  service  of  the  citation  has  been  made  by 
publication  the  answer  must  be  filed  on  or  before  the  appearance 
•f  the  term  next  succeeding  that  to  which  the  citation  is  return- 
able.1 No  valid  judgment  can  be  taken  against  the  defendant  be- 
fore the  time  to  answer  has  expired.2  The  second  day  of  each  term 
of  the  district  or  county  court  is  appearance  day.1 

AVhere  the  defendant  files  an  answer  he  cannot  withdraw  it,  and 
thus  avoid  the  results  of  his  appearance  or  claim  that  the  suit  should 
proceed  as  in  case  of  a  default ;  and  having  withdrawn  his  answer  he 
cannot  complain  that  a  dismissal  of  the  suit  subsequent  to  the  with- 
drawal was  revoked  and  the  suit  reinstated.*  If  he  appears  merely 
to  move  to  quash  the  service,  he  is  in  court  for  all  purposes  as  if 
regularly  cited  to  the  next  term.5 

The  premature  entry  of  judgment  (at  the  first  term  after  publi- 
cation) is  error,  but  the  judgment  is  not  void.6 

£  309.  Return  of  citation  by  publication. 

The  return  of  the  officer  executing  the  citation  must  be  indorsed 
or  attached  to  the  citation,  and  must  show  when  the  citation  was 
executed  and  the  manner  thereof,  specifying  the  dates  of  such  pub- 
lication. The  return  must  be  accompanied  with  a  printed  copy  of 
the  publication,  and  must  be  signed  by  the  officer  officially.7 

The  return  of  the  sheriff  must  show  within  itself  that  there  has 
been  legal  service  of  process.  If  leave  to  amend  is  given,  the  amend- 
ment must  be  made;  it  cannot  be  dispensed  with  by  a  recital  in  the 
judgment  that  it  appeared  to  the  court  that  service  had  been  p«-r- 
fected  according  to  law.8  The  presumption  is  in  favor  of  the  offi- 
cer's return  on  a  collateral  attack.9  But  where  the  return  shows 
that  publication  was  not  made  for  the  proper  length  of  time,  a  re- 
cital of  due  service  in  the  judgment  will  not  prevail  where  the  evi- 

1RS.  1264. 

*  Burns  v.  Batey,  1  App.  C.  C.,  §  431. 
ts  1891,  p.  94;  R  S.  1280. 

«  Williams  v.  Huling,  43  T.  113. 

»  Kautfman  v.  Wooters,  79  T.  205  (13  S.  W.  Rep.   549);   Sam  v.  Hockstadler, 
s.  \v.  Rep  HtB     .Ktna  I..  Ins.  Co.  v.  Hanna,  81  T.  4^7. 17  S.  W.  Kep.85). 
Service  by  publication  is  perfected  as  notice  so  as  to  affect  a  purchaser  j> 
lit>  ujK>n  the  publication  for  the  time  and  in  the  manner  prescrilwl  in  the 
Matutf.    The  continuance  until  the  second  term  prescribed  in  th. 
which  time  the  defendant  could  answer,  does  not  affect  the  existence  of  the 
completed  service    Cassidy  v.  Kluge,  73  T.  154  (12  S.  W.  Rep.  13);  Smith  v.  Cas- 
7:J  T.  161  (12  S.  W.  Rep.  13). 

•Tobar  v.  Losano,  6  Civ.  App.  698  (25  S.  W.  Rep.  973);  Davis  v.  Robinson,  70  T. 
894  (7  S.  W.  Rep.  749). 

7  R  S.  1238. 

8Blossman  v.  Letchford,  17  T.  647. 

•Tobar  v.  Losano,  6  Civ.  App.  698  (25  a  W.  Rep.  973> 


324  CITATION   BY   PUBLICATION-.  [§  .310. 

•dence  on  which  such  recital  was  made  is  pointed  out,  and  that  shows 
that  there  was  not  due  service.1  But  it  is  held  that  where  the  re- 
turn on  the  citation  shows  that  less  than  twenty-eight  days  expired 
between  the  date  of  the  issuance  of  the  citation  and  the  return  day, 
but  recites  that  it  was  published  for  four  successive  weeks,  the  judg- 
ment is  not  void.  The  presumption  must  prevail  in  favor  of  the 
judgment,  that  the  officer  did  his  duty  and  that  he  promptly  caused 
the  publication  to  be  made,  and  that  the  court  was  satisfied  of  that 
fact  on  entering  judgment.2 

The  return  must  state  all  the  facts  necessary  to  show  that  the 
writ  has  been  executed  according  to  the  terms  of  the  law.  If  it 
does  not  show  when  the  publication  was  made  nor  that  it  was  made 
the  required  length  of  time,  it  is  insufficient.3 

§  310.  Judgment  in  suits  by  publication. 

Where  service  of  process  has  been  made  by  publication,  and  no 
answer  has  been  filed  within  the  time  prescribed  by  law,  the  court 
appoints  an  attorney  to  defend  the  suit,  and  judgment  is  rendered 
as  in  other  cases.4  The  same  provision  is  made  for  the  appointment 
of  an  attorney  when  unknown  owners  in  partition  are  cited  by  pub- 
lication.5 The  proceedings  are  the  same  as  above  in  suits  to  settle 

i  Fowler  v.  Simpson,  79  T.  611  (15  S.  W.  Eep.  682). 

2Tobar  v.  Losano,  6  Civ.  App.  698  (25  S.  W.  Rep.  973). 

3  Chaff ee  v.  Bryan,  1  App.  C.  €.,  §  770;  Allen  v.  Wyser,  29  T.  150.  Where  the 
citation  was  published  for  four  successive  weeks  prior  to  the  term  of  the  court 
at  which  the  judgment  was  rendered,  but  not  for  that  length  of  time  prior  to 
the  return  day  of  the  writ,  the  service  was  held  sufficient.  Wilson  v.  Green,  1 
App.  C.  C..  §  98. 

A  return  "came  to  hand  this  28th  day  of  October,  1881,  at  11  o'clock  A.  M., 
and  executed  by  having  the  within  writ  published  for  four  consecutive  weeks 
previous  to  return  day,"  signed  by  the  sheriff,  and  accompanied  with  the  affi- 
davit of  the  editor  of  the  newspaper  that  the  citation  was  published  four  con- 
secutive weeks  in  his  paper,  giving  dates,  was  held  insufficient  under  the  present 
law.  Burns  v.  Batey,  1  App.  C.  C.,  §  419.  An  affidavit  of  the  publisher  is  not 
now  required  (Burns  v.  Batey,  1  App.  C.  C.,  §  419;  Chaffee  v.  Bryan,  id.,  §  771), 
and  would  not  be  considered  if  attached  to  the  return.  Tobar  v.  Losano,  6  Civ. 
App.  698  (25  S.  W.  Rep.  973). 

4R.S.  1346. 

8  R.  S.  3609.  An  attorney  must  be  appointed  in  all  cases  where  a  defendant  is 
cited  by  publication,  and  fails  to  appear  within  the  term  allowed  for  pleading. 
Formerly  he  was  allowed  a  reasonable  compensation,  to  be  taxed  as  a  part  of 
the  costs.  R  S.  1879,  1212;  Burns  v.  Batey,  1  App.  C.  C.,  §  420.  An  answer  in 
the  record,  signed  by  an  attorney  and  referred  to  in  the  judgment,  authorizes 
the  presumption  simply  that  it  was  filed  by  an  attorney  appointed  by  the  court. 
It  will  not  bind  the  defendant.  Foote  v.  Sewall,  81  T.  659  (17  S.  W.  Rep.  373); 
Schneider  v.  Gray,  7  Civ.  App.  25  (26  S.  W.  Rep.  640).  The  attorney  cannot  rep- 
resent conflicting  interests  of  the  parties  for  whom  he  acts.  When  a  conflict 
becomes  apparent,  the  attorney  appointed  should  be  relieved  of  a  part  of  his 
duties,  and  another  or  others  should  be  appointed.  O'Leary  v.  Durant,  70  T.  409 
(11  S.  W.  Rep.  116). 

Before  the  Revised  Statutes  were  enacted  it  was  only  where  unknown  heirs 


§§  311,  312.]  CITATION    BY    PUBLICATION. 

the  title  to  property  against  non-resident,  unknown  or  transient 
persons  —  no  judgment  by  default  can  be  entered,  but  the  plaintiff 
must  prove  his  case,  and  a  statement  of  the  facts  must  be  filed.1 

§  811.  Statement  of  the  evidence. 

Where  no  answer  is  filed,  a  statement  of  the  evidence,  approved 
and  signed  by  the  judge,  must  be  filed  with  the  papers  of  the  r;ui>t> 
as  part  of  the  record  thereof.2  This  provision  is  imperative,  and 
the  judgment  will  be  reversed  if  it  is  not  complied  with.3  The  law 
is  not  complied  with  by  tiling  the  papers  upon  which  judgment  was 
]fin lered.  It  must  appear  that  the  court  recognized  the  papers  as 
the  evidence  adduced.4  It  seems  that  the  incorporation  of  a  state- 
ment of  the  facts  in  the  judgment  is  sufficient.* 

The  failure  to  file  a  statement  of  facts  in  a  suit  by  attachment 
does  not  render  the  judgment  void  so  that  it  may  be  attacked  col- 
laterally ; 6  nor  will  the  judgment  be  reversed  on  the  complaint  of 
one  whose  duty  it  was  to  see  that  a  statement  was  filed.7 

§  312.  What  judgment  authorized. 

Except  in  cases  affecting  the  personal  status  of  the  plaintiff,  and 
cases  in  which  service  of  process  by  publication  may  t>e  considered 
to  have  been  assented  to  in  advance  (as  in  cases  of  copartnerships 
and  corporations),  service  of  process  by  publication  in  actions  against 
non-iv-,i<lents  is  effectual  only  where,  in  connection  with  process 
against  the  }>erson  for  commencing  the  action,  property  in  the  state 
is  brought  under  the  control  of  the  court,  and  subjected  to  its  dis- 
position by  process  adapted  to  that  purpose,  or  where  the  judgment 

were  cited  by  publication  that  it  was  required  that  an  attorney  be  appointed  by 
the  court  to  represent  the  defendant  Harris  v.  Daugherty,  74  T.  1  (11  S.  W. 
Eep.  " 

s!893,  p.  77;  R&  1504A 

*R  a  1846;  Acts  1893,  p.  77;  R  a  1504<t 

'Chaffee  v.  Bryan,  1  App.  C.  C.,  §  772;  Burns  v.  Batey,  id.,  §  420;  Thomas  v. 
Jones,  41  T.  265;  Chrisman  v.  Miller,  15  T.  159;  Pierpont  v.  Pierpont,  19  '! 

v.  Davis,  24  T.  187;  McFadden  v.  Lockhart,  7  T.  573;  Byrnes  v.  Sampson, 
74  T.  79. 

<  Thomas  v.  Jones,  41  T.  265. 

•Hill  v.  Baylor,  23  T.  261;  Davis  v.  Davis,  24  T.  187;  Harris  v.  Dau^-h.  rty.  71 
T.  1  (11  S.  W.  Rep.  921).  When  by  amendment  an  allegation  i^  ina«l»«  of  such  a 
nature  that  the  defendant  should  be  served  with  notice,  ami  such  servio-  is  nwlc 
by  publication  and  there  is  no  appearance,  the  proceedings  will  be  con*, 
as  if  in  a  suit  by  publication,  ami  the  record  must  contain  a  statement  of  th<> 
facts.  Hewitt  v.  Thomas,  46  T 

•Buse  v.  Bartlett,  1  Civ.  App.  335  (21  S.  W.  Rep.  52).  When-  two  makers  of  a 
promissory  note  were  served  personally,  and  a  thinl  by  publication,  anil  tin- 
judgment  recited  that  the  defendants  appeared,  the  recital  was  held  to  apply  to 
all  the  defendants,  and  a  statement  of  the  facts  was  not  necessary.  Chester  v. 
Walters,  30  T. 

7Taliaferro  v.  Carter,  74  T.  037  ^12  S.  W.  Rep.  730). 


326  .  CITATION   BY   PUBLICATION.  [§  312. 

is  sought  as  a  means  of  reaching  such  property  or  affecting  some  inter- 
est therein.  It  is  not  decided,  however,  that  a  state  may  not  author- 
ize proceedings  to  determine  the  status  of  one  of  its  citizens  towards 
a  non-resident  which  would  be  binding  within  the  state,  though 
made  without  service  of  process  or  personal  notice  to  the  non-resi- 
dent. The  jurisdiction  which  every  state  possesses  to  determine 
the  civil  status  and  capacities  of  all  its  inhabitants  involves  author- 
ity to  prescribe  the  conditions  on  which  proceedings  affecting  them 
may  be  commenced  and  carried  on  within  its  territory.  A  state, 
for  example,  has  absolute  right  to  prescribe  the  conditions  upon 
which  the  marriage  relation  between  its  own  citizens  shall  be  cre- 
ated and  the  causes  for  which  it  may  be  dissolved ;  but  a  mere  per- 
sonal judgment,  rendered  against  a  non-resident  of  the  state,  on 
notice  by  publication,  in  a  suit  brought  to  determine  the  mere  per- 
sonal rights  and  obligations  of  the  parties,  is  without  due  process 
of  law,  and  void.1 

The  above  rule,  that  a  personal  judgment  cannot  be  rendered 
against  a  non-resident  on  notice  by  publication,  or  service  without 
the  state,  is  obligatory  upon  the  states  and  is  followed  by  the  courts 
of  Texas.2  A  personal  judgment  for  costs  is  not  authorized;  but 
in  suits  for  partition  it  is  held  that  the  court  may  make  the  costs 
adjudged  against  each  party  a  lien  upon  the  land  allotted  to  him, 
and  may  order  its  sale  if  the  costs  should  not  be  paid.3  In  an  ac- 
tion against  a  corporation  for  specific  performance  of  a  contract  to 
convey  land,  notice  by  publication  will  not  authorize  a  judgment 
for  damages  for  breach  of  the  contract.4 

A  judgment  partitioning  land  is  authorized.5  A  judgment  ren- 
dered upon  service  by  publication  upon  non-resident  defendants  in 
an  attachment  suit  is  void  save  as  against  the  property  attached.  An 
execution  sale  of  other  property  under  such  judgment  is  void.6  The 
attachment  of  property  and  bringing  it  into  the  custody  of  the  law 
is  the  fact  which  gives  the  court  jurisdiction  of  the  property  of  a 
non-resident,  and  defect  in  the  affidavit  for  attachment  will  not  de- 
feat it.7  But  it  is  held'  that  the  failure  of  the  attachment  is  fatal 

1  Pennoyer  v.  Neff,  95  U.  S.  714,  Myer  on  Vested  Rights,  §  780. 

2  York  v.  State,  73  T.  651  (11  S.  W.  Rep.  869);  Kimmarle  v.  H.  &  T.  C.  Ry.  Co.,  76 
T.  686  (12  S.  W.  Rep.  698);  Maddox  v.  Craig,  80  T.  600  (16  S.  W.  Rep.  328);  Osborne 
v.  Barnett,  1  App.  C.  C.,  §  129;  Martin  v.  Cobb,  77  T.  544  (14  S.  W.  Rep.  162). 

"Taliaferro  v.  Butler,  77  T.  578  (14  S.  W.  Rep.  191);  Hardy  v.  Beaty,  84  T.  562 
(19  S.  W.  Rep.  778);  Gunter  v.  Armstrong,  2  Civ.  App.  599  (21  S.  W.  Rep.  607); 
Foote  v.  Sewall,  81  T.  659  (17  S.  W.  Rep.  373);  Freeman  v.  Alderson,  119  U.  S.  185. 

«Tempel  v.  Dodge,  31  S.  W.  Rep.  686. 

»Taliaferro  v.  Butler,  77  T.  578  (14  S.  W.  Rep.  191);  Foote  v.  Sewall,  81  T.  659 
(17  S.  W.  Rep.  373). 

6  Martin  v.  Cobb,  77  T.  544  (14  S.  W.  Rep.  162);  Harris  v.  Dougherty,  74  T.  1  (11 
S.  W.  Rep.  921). 

7Barrelli  v.  Wagner,  5  Civ.  App.  445  (27  S.  W.  Rpp.  17),  following  Cooper  v. 
Reynolds,  10  Wall  319;  Mathews  v.  Dinsmore,  109  U.  S.  216. 


•§312.]  CITATION   BY    PUBLICATION.  327 

to  the  jurisdiction.1     A  non-resident  may  maintain  an  attachment 

st  a  n..n-resident.  and  an  appearance  by  the  defendant  to  ex- 
cept to  the  jurisdiction  confers  jurisdiction  over  his  person.2  Tho 
validity  of  the  judgment  directing  a  sale  of  the  attached  property 
is  not  affected  by  the  rendering  of  a  personal  judgment  against  the 

dant:  '  and  it  is  held  not  to  affect  a  sale  of  property  that  a 
final  judgment  was  rendered  by  default.4  The  statute  does  not  con- 
irmplate  that  the  seizure  of  property  by  attachment  is  notice;  notice 
must  be  given  either  by  personal  service  or  by  publication,  and 

:  by  publication  it  will  not  authorize  a  judgment  on  a  new 
of  action  set  up  by  way  of  amendment,  and  of  which  no  no- 
tice was  given  by  publication.     The  giving  of  notice  in  the  manner 
pointed  out  by  the  statute  is  necessary  to  give  a  court  jurisdiction 
to  hear  and  determine  the  pending  cause  if  there  be  no  appearance. 
Unless  this  notice  is  legally  given  no  court  has  power  or  jurisdic- 
tion to  order  a  sale  of  the  defendant's  property  though  in  cu*' 
'-•  by  virtue  of  its  seizure  under  a  valid  attachment.5 
A  >tate  has  control  over  property  within  its  limits;  and  the  con- 
dition of  ownership  of  real  estate  therein,  whether  the  owner  be 
stranger  or  citizen,  is  subjective  to  its  rules  concerning  the  holding, 
the  transfer,  liability  to  obligations  private  or  public,  and  the  modes 

ablishing  titles  thereto.  It  cannot  bring  the  person  of  a  non- 
r«->ident  vvithin  its  limits,  but  it  may  determine  the  extent  of  his 
title  to  real  estate,  and  for  the  purpose  of  such  determination  may 
provide  any  reasonable  methods  of  imparting  notice.'  A  proceed- 
ing to  enforce  an  equitable  lien  on  real  estate  on  account  of  ta\t-s 
and  insurance  paid  is  maintainable.7  The  court  acquires  jurisdic- 
tion, on  notice  by  publication,  to  render  a  judgment  affecting  title 
to  real  estate  in  suits  in  the  form  of  trespass  to  try  title.  The  stat- 
utes show  the  purpose  to  be  to  provide,  by  that  form  of  action,  a 
method  of  vesting  and  divesting  the  title  to  real  estate  in  all 
where  the  right  or  title  or  .interest  and  possession  of  land  may  be 
involved.  The  remedy  was  intended  to  be  broad  enough  in  its 
scope  and  effect  to  embrace  all  character  of  litigation  that  affects 
the  title  to  real  estate.  The  remedy  is  held  to  be  .  and  that 

the  court  has  power  to  render  a  judgment  in  so  far  as  it  affects 
title  to  the  land.8 

Hochstadler  v.  Sam,  73  T.  315  (11  a  W.  Rep.  308). 

1  v.  BI-..W  n.  -^  ( -jv.  A  pp.  ->i  --J-J  s.  \V.  K,T.  •>'>+)',  St.  L.,  A.  &  T.  Ry.  Co. 
v.  Whitl.-y.  77  T  El  \V.  Rep.  853). 

»Bam-lii  v.  Wa^i.T.  :•  Civ.  App.  W.  Rep.  17). 

4  Thomson  v.  Shackelford,  6  Civ.  App.  1J1    ,M  s.  \V.  Rep.  121). 

5  Stewart  v.  Anders. -n.  T"  T.  >-  is  s.  W.  1; 

Am  It  v.  Griggs,  134  U.  S.  316;  Hardy  v.  I<«-:it> .  M  T.  ViJ  (19  a  W.  Rep.  778). 
:  H.'i.lenheimer  v.  Lorin-.  »>  Civ.  A  pp.  560  ('X  S.  \V    U.-p.  99). 
8  Hardy  v.  Beaty.  H4  T.  o6i  (19  &  W.  Rep.  778);  Sloan  v.  Thompson,  4  Civ.  App. 
419  (23  S.  W.  Rep.  6i:{). 


328  CITATION   BY    PUBLICATION.  [§  313. 

Garnishment  of  the  debtor  of  a  non-resident,  followed  by  per- 
sonal service  on  the  defendant  without  the  state,  authorizes  a  judg- 
ment for  the  amount  of  indebtedness  admitted  by  the  garnishee.1 

§  313.  Presumptions  in  aid  of  the  proceedings  where  the  judgment 
is  attacked  collaterally. 

In  some  cases  it  is  held  that  a  person  who  invokes  the  protection 
of  a  judgment  against  a  non-resident  on  attachment  and  publication 
must  show  affirmatively  by  the  record  that  everything  necessary 
to  the  jurisdiction  was  actually  and  rightly  done.  Other  cases  hold 
that  the  same  presumption  will  be  indulged  in  support  of  such  a 
judgment  as  where  there  has  been  personal  service.  This  seems  to 
be  the  rule  adopted  in  this  state.2  In  either  case  the  presumption 
that  the  court  did  not  render  a  final  judgment  until  it  was  author- 
ized to  do  so  arises  from  the  fact  that  to  do  otherwise  would  be  a 
breach  of  duty,  which  is  never  presumed  from  the  doing  of  an  act 
which  may  have  been  legal.3 

Where  the  case  is  within  the  jurisdiction  of  the  court,  and  no  fact 
appears  affirmatively  in  the  record  sufficient  to  defeat  the  jurisdic- 
tion, evidence  aliunde,  even  where  the  judgm'ent  is  silent  as  to  the 
process  or  its  service,  will  not  be  heard  to  contradict  the  presump- 
tion of  regularity;  if  the  judgment  itself  finds  and  recites  a  valid 
notice  or  citation  and  service,  that  controls  the  rest  of  the  record, 
otherwise  if  it  recites  an  invalid  citation,  or  names  the  precise  char- 
acter thereof.  If  the  judgment  is  silent,  then  the  whole  process  in 
the  record  may  be  examined.4 

To  determine  whether  the  record  shows  affirmatively  that  there 
has  been  proper  service,  the  whole  of  it  should  be  taken  together, 
and  if  that  portion  of  it  which  relates  to  the  question  shows  affirm- 

1  Goodman  v.  Henley,  80  T.  499  (16  S.  W.  Rep.  432);  Berry  v.  Davis,  77  T.  191 
(13  S.  W.  Rep.  578);  Strauss  v.  Hernsheim,  3  App.  C.  C.,  §  408;  Murphy  v.  Wal- 
lace, id.,  §  430. 

2  Buse  v.  Bartlett,  1  Civ.  App.  335  (21  S.  W.  Rep.  52).    It  will  be  presumed,  for 
example,  that  the  sheriff  followed  the  command  of  the  writ,  and  published  it 
in  the  newspaper  of  the  nearest  county,  because  there  was  no  newspaper  pub- 
lished in  the  county  of  the  venue,  where  there  is  no  proof  to  the  contrary;  also 
that  the  requisite  number  of  publications  was  made,  though  the  return  did  not 
give  the  dates,  but  only  stated  that  it  had  been  published  the  four  successive 
weeks  before  the  return  day.    This,  of  course,  applies  in  case  of  a  collateral  at- 
tack on  the  judgment. 

3  Stewart  v.  Anderson,  70  T.  588  (8  S.  W.  Rep.  295). 

4  Martin  v.  Burns,  80  T.  676  (16  S.  W.  Rep.  1072).     It  is  held  in  this  case  that  as 
the  record  of  the  court  showed  that  the  publication  was  made  on  an  affidavit 
that  the  residence  of  the  defendants  was  unknown,  it  would  not  be  presumed 
that  they  were  non-residents.    It  is  also  held  in  Gunter  v.  Armstrong,  2  Civ. 
App.  599  (21  S.  W.  Rep.  607),  that  unless  it  affirmatively  appears  from  the  record 
that  the  defendants  were  non-residents,  it  will  be  presumed  that  they  were  citi- 
zens of  this  state,  and  that  a  judgment  for  costs  was  valid.   See  Lawler  v.  White, 
27  T.  250. 


§  313.]  CITATION    BY   PUBLICATION. 

atively  such  character  of  service  as  is  not  authorized  by  law,  or  such 
defective  service  that  a  judgment  by  default  rendered  thereon  would 
be  void,  and  not  voidable  only,  and  the  remainder  of  the  record  is 
silent  upon  the  subject,  not  showing  any  finding  of  the  court  from 
whii-h  it  may  be  inferred  that  there  was  other  service  or  an  appear- 
ance, then  this  would  be  a  case  in  which  it  affirmatively  appears 
that  the  jurisdiction  of  the  court  did  not  attach.  If,  however,  other 
-  of  the  record,  and  particularly  the  judgment,  recite  the  due 
service  of  process,  or  other  facts  which  would  give  the  court  juris- 
diction of  the  person,  then  this  would  be  a  case  in  which  it  would 
affirmatively  appear  that  the  jurisdiction  had  in  fact  attached,  and 
the  general  rule  would  apply,  that  in  a  collateral  proceeding  this 
recital  in  the  record  imports  absolute  verity.1  The  rule  is,  that  al- 
though the  judgment  may  recite  that  there  was  due  service  of  pro- 
cess, yet  if  it  point  out  the  evidence  or  facts  in  the  record  on  which 
that  conclusion  is  based,  and  these  show  that  the  service  or  tho 
process  was  void,  then  the  recital  is  of  no  avail.2 

iTreadway  v.  Eastburn,  57  T.  209;  Hahn  v.  Kelley,  34  Cal.  407. 

2  Fowler  v.  Simpson,  79  T.  611  (15  S.  W.  Rep.  082);  Stegall  v.  Huff,  54  T.  193. 
But  see  Davis  v.  Robinson,  70  T.  394  (7  a  W.  Rep.  749);  McCarthy  v.  Burtis,  3 
Civ.  App.  439  (22  S.  W.  Rep.  422).  If  the  record  shows  affirmatively  that  publi- 
cation was  not  made  for  the  period  required  by  law,  a  purchaser  at  a  sale  under 
the  judgment  acquires  no  title;  his  claim  of  title  may  be  attacked  collaterally. 
Collins  v.  Miller,  64  T.  118.  A  personal  judgment  is  not  authorized  where  the 
record  recites  an  appearance  by  an  attorney  appointed  by  the  court.  Heady  v_ 
Bexar  B.  &  L.  Ass'n,  26  a  W.  Rep.  468. 

A  judgment  which  recites  that  publication  was  made  according  to  law  and 
the  order  of  the  court  is  not  void  upon  its  face  for  want  of  publication, 
although  no  citation  or  writ  of  publication  appears  in  the  record.  Hatch  v.  De- 
La  Garza,  22  T.  176. 


CHAPTEE  XIV. 


ABATEMENT  AND  DISCONTINUANCE  OF  SUITS. 


§  314.  Rule  of  the  common  law. 

315.  Death  of  plaintiff  will  uot  abate 

suit,  when. 

316.  Scire  facias  to  executor,  etc. 
817.  Death  of  defendant. 

318.  Where  an  executor  or  adminis- 
trator dies. 
819.  Sui'viving  parties. 

320.  Death  between  verdict  and  judg- 

ment. 

321.  Marriage  of  female  plaintiff. 

322.  Marriage  of  female  defendant. 

323.  Suit  to  use  of  another. 

324.  Death  of  party  to  suit  for  inju- 

ries resulting  in  death. 

325.  Injuries  not  resulting  in  death. 

326.  Another  action  pending. 

327.  Where  some  of  the  defendants 

are  not  served. 


§  328.  Discontinuance  in  vacation. 

329.  Discontinuance  as  to  a  joint  de- 

fendant served  with  process. 

330.  Discontinuance  where    defend- 

ant has  filed  a  counter-claim. 

331.  Dismissal  for  want  of  prosecu- 

tion. 

332.  Effect  of  discontinuance. 

333.  Setting  aside  judgment  of  dis- 

missal. 

334.  Requisites  of  scire  facias  and  re- 

turns. 

335.  Actions  by  and  against  railroad 

companies. 

336.  Death  of  party  pending  appeal. 

337.  Actions  against  receivers. 

338.  Judgment  against  a  dead  person. 

339.  Party  becoming  insane   before 

verdict. 


§  314.  Rule  of  the  common  law  as  to  abatement  by  death. 

It  is  a  general  rule  of  the  common  law  that  the  right  of  action 
for  torts  unconnected  with  contract  does  not  survive  the  death  of 
the  wrong-doer,  but  is  determined  by  it,  the  maxim  of  the  common 
law  being  actio  personalis  moritur  cum  persona.1  In  the  case  of 
injuries  to  the  person,  whether  by  assault,  battery,  false  imprison- 
ment, malicious  prosecution,  slander,  or  otherwise,  the  rule  at  com- 
mon law  is  that,  if  either  the  party  who  received  or  committed  the 
injury  die,  no  action  can  be  supported  either  by  or  against  the  exec- 
utors or  other  personal  representatives.2  Actions  for  injuries  to 
personal  property  are  not  abated  by  the  death  of  either  party,  but 
survive  in  favor  of  or  against  the  executor  or  administrator  for  the 

1  By  the  act  of  January  20, 1840,  which  took  effect  March  16, 1840,  the  common 
law  of  England  was  adopted  as  a  rule  of  decision,  so  far  as  it  was  not  incon- 
sistent with  the  constitution  and  laws  of  this  state.  R.  S.  3258.  By  the  act  of 
December  20,  1836,  the  common  law  of  England,  when  not  inconsistent  with  the 
laws  of  this  state,  was  adopted  in  its  application  to  juries  and  evidence.  R.  S. 
2299. 

21  Chit.  PL  86;  Watson  v.  Loop,  12  T.  11;  Taney  v.  Edwards,  27  T.  224;  Cherry 
v.  Speight,  28  T.  503;  Gibbs  v.  Belcher,  30  T.  79;  Harrison  v.  Moseley,  31  T.  608. 


§  315.]  ABATEMENT  AND  DISCONTINUANCE  OF   SUITS.  331 

actual  injury  done  or  value  of  the  property  converted.1  The  com- 
mon-law rule  is  changed  by  statute,  so  that  causes  of  action  for 
personal  injuries,  whether  they  result  in  death  or  not,  and  whether 
the  injury  be  to  the  health,  reputation  or  person,  survive  to  the 

-i-ntatives  of  the  person  injured. - 

An  action  against  a  city  to  recover  damages  for  injuries  caused 
!>v  a  defect  in  a  street  abates  at  common  law.3     And  such  a  cause. 
of  action  arising  under  a  statute  of  another  state  would  not  be  en- 
ed  here  in  the  absence  of  a  statute.4 

?'  315.  Death  of  plaintiff  not  to  abate  suit. 

AY  here  in  any  suit  the  plaintiff  shall  die  before  verdict,  if  the 
•  of  action  be  one  which  survives,  the  suit  will  not  abate  by 
reason  of  such  death,  but  the  executor  or  administrator.,  and  if 
there  be  no  administration,  and  no  necessity  therefor,  then  the  heir 
of  such  deceased  plaintiff  may  appear,  and  upon  a  suggestion  of 
such  death  being  entered  of  record,  in  open  court,  may  be  made 
plaintiff  in  such  suit,  and  the  suit  may  proceed  in  his  name.5  The 
•ice  of  necessity  for  administration  must  affirmatively  appear 
in  a  suit  by  heirs  of  a  deceased  plaintiff.6  If  plaintiffs  death  has 
not  been  suggested,  a  judgment  in  favor  of  his  administrator  is 
erroneous.7  The  death  may  be  suggested  by  the  defendant,  and  if 
proper  parties  are  not  made  within  a  reasonable  time  the  suit  may 
be  dismissed.8  It  seems  that  the  administrator  may  continue  the 
prosecution  of  the  suit  without  any  formal  order  by  the  court.9 
Suggestion  of  plaintiff's  death  may  be  made  after  the  close  of  the 
niony.10 

1 1  Chit  PI.  86:  Ferrell  v.  Mooney,  33  T.  219.  Vindictive  damages  are  not  re- 
coverable from  the  estate  of  a  deceased  trespasser,  no  matter  how  aggravated 
the  trespass  may  have  been.  Wright  v.  Donnell,  34  T.  291. 

2  See  §  325,  infra, 

»Rit/  v.  (  ity  of  Austin,  1  Civ.  App.  455  (20  S.  W.  Rep.  1029). 

<  Tex.  &  Pac.  Ry.  Co.  v.  Richards,  68  T.  375  (4  a  W.  top.  627). 

»RS.  1246. 

«G.,  H.  &  S.  A.  Ry.  Co.  v.  Kelly,  26  S.  W.  Rep.  470. 

7Gowings  v.  Lord.  4  T.  483. 

-  Alexander  v.  Barfield,  6  T.  400. 

•Thompson  v.  McGreal.  9  T. 

'•Meade  v.  Rutledge,  11  T.  44.  Where  both  plaintiffs,  partners.  die,  the  repre- 
sentatives of  both  may  be  made  parties.  Blackmail  v.  Green.  17  T. 

Suit  was  brought  in  the  name  of  a  person  after  his  death,  but  no  servioe  was 
had  on  the  defendants.  At  a  subsequent  term  the  administrator  »t"  the  plaint  nl' 
was  made  a  party,  and  filed  an  amended  petition,  after  which  the  defendants 
were  cited  to  answer.  It  was  held  that  a  plea  in  abatement,  alleging  the  death 
of  the  plaintiff  at  the  time  suit  was  brought,  was  properly  overruled,  hut  that 
the  administrator  should  have  been  required  to  pay  all  costs  that  had  accrued. 
Finlay  v.  Merriman,  39  T.  56. 


332  ABATEMENT   AND    DISCONTINUANCE    OF    SUITS.       [§§  316,  317. 

£  316.  Scire  facias  to  executor,  etc. 

Where  a  plaintiff  dies  and  no  appearance  and  suggestion  are  made 
at  the  first  term  of  the  court  thereafter,  it  is  the  duty  of  the  clerk^ 
upon  the  application  of  the  defendant,  his  agent  or  attorney,  to 
issue  a  scire  facias  for  the  executor,  administrator  or  heir  of  the  de- 
cedent, requiring  him  to  appear  and  prosecute  the  suit ;  and  if,  after 
service  of  such  scire  facias  as  required  in  the  case  of  citations,  the 
executor,  administrator  or  heir  shall  not  enter  his  appearance  on  or 
before  the  appearance  day  of  the  succeeding  term  of  the  court,  the 
defendant  may,  on  motion,  have  the  suit  discontinued.1 

§  317.  Death  ot  defendant. 

Where  in  any  suit  the  defendant  shall  die  before  verdict,  if  the 
cause  of  action  be  one  which  survives,  the  suit  shall  not  abate,  but, 
upon  a  suggestion  of  such  death  being  entered  of  record  in  open 
court,  or  upon  a  petition  of  the  plaintiff,  representing  that  fact, 
being  filed  with  the  clerk,  it  is  the  duty  of  the  clerk  to  issue  a  scire 
facias  for  the  executor  or  administrator,  and  in  a  proper  case  for 
the  heir  of  such  deceased  defendant,  requiring  him  to  appear  and 
defend  the  suit ;  and  upon  the  return  of  such  service  the  suit  will 
proceed  against  the  executor,  administrator  or  heir,  and  such  judg- 
ment may  be  rendered  therein  as  may  be  authorized  by  law.2 

The  death  of  a  defendant  in  an  action  of  debt  merely  suspends 
the  action  until  the  legal  representative  makes  himself  or  is  made  a 
party.  The  action  then  proceeds,  not  as  a  new  suit  dating  from  its 
revival,  but  as  an  action  pending  from  the  date  of  its  original  insti- 
tution against  the  deceased.  An  action  of  debt  cannot  be  revived 
against  the  heir  unless  the  suit  might  have  been  brought  originally 
against  him.  But  if  there  is  no  administration  upon  the  estate  of  a 
deceased  defendant,  and  the  facts  show  that  none  is  necessary  or 
desired  by  those  interested,  and  especially  if,  owing  to  the  lapse  of 
time,  the  statute  forbids  the  grant  of  administration  and  the  heirs 
are  in  possession  of  the  property,  they  are  in  such  sense  the  repre- 
sentatives of  their  ancestor  that  a  pending  action  may  be  revived 
or  an  original  suit  brought  against  them.3 

1 R,  S.  1247.  If  a  suit  be  dismissed  for  want  of  prosecution,  it  may  be  rein- 
stated at  the  next  term  on  the  discovery  that  the  plaintiff  was  dead  when  the 
order  was  made.  It  is  held  that  when  the  plaintiff  dies  no  other  proceedings 
can  be  taken  by  the  defendant  except  a  scire  facias  to  his  representatives,  after 
service  of  which  the  suit  may  proceed  to  trial,  or  on  failure  to  prosecute  the 
suit  may  be  dismissed.  Armstrong  v.  Nixon,  16  T.  610.  But  the  rule  is  that  a 
judgment  entered  in  a  case  in  which  there  is  no  suggestion  of  death  is  only 
voidable,  and  may  become  valid  and  binding  unless  the  proper  proceedings  are 
taken  within  proper  time.  Harrison  v.  McMurray,  71  T.  122  (8  S.  W.  Rep.  612). 

2  R.  S.  1248. 

»McCampbell  v.  Henderson,  50  T.  601;  Grayson  v.  Winnie,  13  T.  288;  Thomas 
v.  Jones,  10  T.  52;  Hearne  v.  Erhard.  23  T.  60.  A  scire  facias  issued  without  sug- 


•  1s.  ::i'.».  n  AM»  DuanrninjAVoi  ra  M-ITS.  333 

?  318.  Where  executor,  etc.,  diea. 

Where  an  executor  or  administrator  shall  be  a  party  to  any  suit, 
whether  as  plaintiff  or  defendant,  aivl  shall  die  or  cease  to  be  such 
itor  or  administrator  before  verdict,  the  suit  will  not  thereby 
abate,  but  may  be  continued  by  or  against  the  person  succeeding 
him  in  the  administration,  or  by  or  against  the  heir,  where  there  is 
no  administration  and  no  necessity  therefor,  upon  like  procee* 

_r  had  as  are  provided  in  preceding  sections  of  this  chapter;  or 
the  suit  may  be  discontinued  as  provided  in  section  3 1C,  supra}- 

£'  319.  Surviving  parties. 

Where  there  are  two  or  more  plaintiffs  or  defendants,  and  one  or 
more  of  them  die,  if  the  cause  of  action  survive  to  the  surviving 
plaintiffs  and  against  the  surviving  defendants,  the  suit  will  not 
abate  by  reason  of  such  death,  but  upon  suggestion  of  such  death 
_r  entered  upon  the  record  the  suit  may,  at  the  instance  of  either 
party,  proceed  in  the  name  of  the  surviving  plaintiffs  or  against  the 
surviving  defendants,  as  the  case  may  be.2 

When  the  maker  and  the  indorser  of  a  note  have  been  sued  in  the 
same  action,  if  the  maker  dies  during  the  pendency  of  the  suit,  the 
suit  abates  as  to  him.  and  it  is  not  necessary  that  his  administrator 
be  made  a  party  defendant,  although  his  estate  remains  liable  for 
the  debt.  In  such  case  the  plaintiff  may  proceed  to  judgment 
ist  the  indorser  alone,  and  the  case  is  not  within  the  inhibition 
of  the  statute,3  which  provides  that  no  judgment  shall  be  rendered 
st  an  indorser  unless,  at  the  same  time,  judgment  be  also  ren- 
dered against  the  principal,  except  in  cases  where  the  residence  of 
the  principal  is  unknown,  etc.4  The  heirs  and  representatives  of  a 
ised  plaintiff,  in  an  action  of  trespass  to  try  title  by  tenants  in 
common,  ne.-d  not  be  brought  in.5 

gestion  of  death,  or  a  petition  by  the  plaintiff,  may  be  quashed  on  motion  of  the 

sentutiv.-.     Harilt-y  v.  Lemnion,  2%  T.  1-V). 

Where  defendant  dies  after  service  of  process,  and  the  petition  is  held  ii 
on  exceptions  by  the  legal  representative  for  failure  to  allege  the  resi 
of  the  defendant,  it  is  error  to  permit  plaintiff  to  Ale  an  amendment  alleging 
the  residence  of  the  defendant:  surli  an  amendment  could  not  relate  back  so  as 
to  cure  substantial  defects  in  the  original  |*-tition.    Liu  Mi.  -Id  v.  Fry,  39  T.  299. 
The  death  of  one  defendant  who  resides  in  the  county  in  which  the  suit  is 
brought,  and  dismissed  as  to  him,  will  notdefeat  the  juri.Miiction  as  to  a  d> 
ant  who  r.'-i'li -  in  another  county.    Lewis  v.  Davidson,  51  T.  2~>1. 
'  1R  S.  KM'.*.     When-  the  plaintiff  who  sues  as  administrator  resigns  or  is  re- 
moved or  discharged,  the  defendant  should  plead  tiie  fact  by  a  plea  sin* 

•ontinuance.     Hall  v.  Pearman,  20  T.  168. 
SR.S.  1250. 

»R.a  i2««.  i 

«  Aldridge  v.  Mardoff,  32  T.  204. 

4  Watrous  v.  McGrew,  16  T.  506:  Croft  v.  Rains  10  T.  520;  May  v.  Slade,  24  T. 
Musselman  v.  Strohl,  S3  T.  473  (It  S.  W.  Rep.  857). 


334:  ABATEMENT   AND    DISCONTINUANCE    OF    SUITS.       [§§  320,  321. 

On  the  death  of  a  partner  pending  suit  brought  in  the  firm  name, 
it  is  not  necessary  to  bring  in  the  representatives  of  the  deceased. 
partner.1 

§  320.  Death  between  verdict  and  judgment. 

If  in  any  suit  either  party  die  between  verdict  and  judgment,, 
the  judgment  may  be  entered  as  if  both  parties  were  living.2  The 
plaintiff  in  a  suit  died  after  verdict  and  judgment,  but  before  the  de- 
termination of  a  motion  for  a  new  trial  filed  by  defendant.  It  is 
suggested  that  the  necessary  bills  of  exception  and  statements  of 
facts  may  be  made  up  and  filed  in  such  case,  but  that  if  an  appeal 
were  taken  immediately  after  the  overruling  of  the  motion  for  a 
new  trial,  without  making  the  legal  representative  of  plaintiff  a 
party,  it  would  be  necessary  to  hold  the  proceedings  upon  and  sub- 
sequent to  the  motion  for  new  trial  absolutely  void.  The  case  hav- 
ing been  brought  up  by  writ  of  error,  however,  duly  and  legally 
sued  out  and  served  upon  the  administrator,  all  the  proceedings 
subsequent  to  the  original  judgment  could  be  held  void,  and  such 
judgment  and  proceedings  still  be  before  the  court  for  decision.3 

§  321.  Marriage  of  plaintiff  feme  sole. 

A  suit  instituted  by  a  feme  sole  will  not  abate  by  her  marriage, 
but  upon  a  suggestion  of  such  marriage  being  entered  on  the  rec- 
ord, the  husband  may  make  himself  a  party  to  the  suit  and  prose- 
cute the  same  as  if  he  and  his  wife  had  been  originally  plaintiffs  in 
such  suit.4  It  is  said  that  this  statute  contemplates  that  the  sug- 
gestion of  marriage  shall  be  made  by  the  plaintiff,  and  is  for  the 
benefit  of  plaintiff,  but  that  if  the  plaintiff  fails  to  make  the  sug- 
gestion the  defendant  may  make  it,  and,  upon  proving  the  mar- 
riage, the  suit  should  proceed  no  further  until  the  husband  is  made 
a  party,  or  cause  be  shown  which  would  authorize  the  wife  to  pro- 
ceed without  him.5  The  proper  practice  would  be  to  present  the 
question  before  the  trial,  in  a  motion  or  suggestion  in  proper  f orin,, 
and  not  during  the  progress  of  the  trial.6  ^ 

1  Dunman  v.  Coleman,  59  T.  199.  The  case  may  proceed  to  judgment  where 
the  death  of  the  partner  takes  place  pending  an  appeal.  But  the  court  will,  it 
seems,  on  motion  of  the  surviving  partner  or  the  appellee,  grant  a  scire  facias 
to  bring  in  the  legal  representatives.  Gunter  v.  Jarvis,  25  T.  581. 

a  R.  S.  1251.  It  seems  that  this  article  applies  to  tort  actions  which  abated  at 
common  law.  See  Gibbs  v.  Belcher,  30  T.  79;  Cherry  v.  Speight,  28  T.  503. 

3  Wamble  v.  Graves,  1  App.  C.  C.,  §  481. 

4  R.  S.  1252. 

6  Breland  v.  Barren,  3  App.  C.  C.,  §  465. 

•  San  Antonio  St  Ry.  Co.  v.  Cailloutte,  79  T.  341  (15  S.  W.  Rep.  390).  In  this 
case  a  widow  sued  for  damages  for  her  son's  death,  and  married  pending  the 
suit  It  was  held  that  the  husband  should  have  been  made  a  party  on  sugges- 
tion of  the  marriage. 


§§  322-324.]       ABATEMENT   AND   DISCONTINUANCE    OF    SUITS.  335 

§  322.  Marriage  of  defendant  feme  sole. 

A  suit  instituted  against  a  feme  sole  does  not  abate  by  her  mar- 
riage, but  upon  a  suggestion  of  such  marriage  being  entered  on  the 
record  in  open  court,  or  upon  a  petition  representing  that  fact  being 
filed  with  the  clerk,  it  becomes  his  duty  to  issue  a  scire  facias  to 
the  husband  of  such  defendant.  Upon  the  return  of  the  scire  facias 
ite.l,  the  husband  is  made  a  party  to  such  suit,  and  it  proceeds 
as  if  the  husband  and  wife  had  originally  been  defendants  in  the 
suit.1 

.-;'  323.  Suit  to  the  use  of  another. 

When  a  plaintiff,  suing  for  the  use  of  another  person,  shall  die 
before  verdict,  the  person  for  whose  use  the  suit  was  brought,  upon 
such  death  being  suggested  on  the  record  in  open  court,  may  prose- 
cute the  suit  in  his  own  name,  and  is  responsible  for  costs  in  the 
s;tine  manner  as  he  would  have  been  had  th£  suit  been  commenced 
by  him.2  If  a  suit  be  in  the  name  of  one  person,  professedly  on  its 
face  for  the  benefit  of  another,  on  the  death  of  the  nominal  plaint* 
iff  the  suit  may,  proceed  in  the  name  of  the  beneficiary  without  re- 
viving in  the  name  of  the  representatives  or  heirs.  If  the  suit 
appears  to  be  for  the  benefit  of  plaintiff,  there  is  no  authority  for 
allowing  it  to  proceed  in  the  name  of  an  alleged  beneficiary  or  as- 
signee until  the  representatives  or  heirs  of  the  deceased  plaintiff 
have  been  cited  and  allowed  an  opportunity  to  admit  or  contest  the 
right  claimed.* 

§  324.  Death  of  party  to  suit  for  injuries  resulting  in  death. 

In  cases  arising  under  the  provisions  of  the  statute  relating  to 
injuries  resulting  in  death,  the  suit  does  not  abate  by  the  death  of 
either  party  pending  the  suit;  but  in  such  case,  if  the  plaintiff  dies, 
where  there  is  only  one  plaintiff,  some  one  or  more  of  the  parties 
entitled  to  the  money  recovered  may  be  substituted  and  the  suit 
cuted  to  judgment  in  the  name  of  such  party  or  parties,  for 
the  benefit  of  the  persons  entitled;  if  the  defendant  dies,  his  execu- 
tor, administrator  or  heir  may  be  made  a  party  and  the  suit  prose- 
cuted to  judgment  as  provided  for  in  previous  sections  of  this 
chapter.4  Every  person,  corporation  or  company  that  may  commit 
a  homicide,  through  wilful  act,  or  omission,  or  gross  neglect,  is  re- 

1  R  S.  1253. 

2  R  S.  12.">4.    In  a  suit  by  the  legal  owner  of  a  promissory  note  for  use  of  the 
administrator  of  an  estate,  tho  in.  ;i[.;i<'ity  of  th«-  administrator  to  siu>  or  t->  a<-t 
in  capacity  of  administrator  cannot  be  pleaded  in  abatement.     Hii>«>n  v.  Dilla- 
hunty.  38  T.  585. 

•  Moore  v.  Rice.  51  T.  289;  Price  v.  Wih-y.  19  T.  142:  Gillespie  v.  Redmond,  13 
T.  9;  O'Neal  v.  Tisdale,  12  T.  40;  Clark  v.  Hopkins,  84  T.  189. 

4  R  S.  1255,  3"  \rtiole  3026  provides  for  bringing  in  the  executor  or 

administrator  of  a  deceased  defendant,  omitting  the  words  or  / 


336  ABATEMENT   AND   DISCONTINUANCE    OF    SUITS.       [§§  325,  326. 

sponsible  in  exemplary  damages  to  the  surviving  husband,  widow, 
heirs  of  his  or  her  body,  or  such  of  them  as  there  may  be,  without 
regard  to  any  criminal  proceeding  that  may  or  may  not  be  had  in 
relation  to  the  homicide.1  The  action  may  be  commenced  and 
prosecuted,  although  the  death  shall  have  been  caused  under  such 
circumstances  as  amount  in  law  to  a  felony,  and  without  regard 
to  any  criminal  proceeding  that  may  or  may  not  be  had  in  relation 
to  the  homicide.2  If  the  sole  plaintiff  die  pending  the  suit,  and  he 
is  the  only  party  entitled  to  the  money  recovered,  the  suit  will 
abate.3 

§  325.  Injuries  not  resulting  in  death. 

Causes  of  action  upon  which  suit  may  be  brought  by  an  injured 
person  for  personal  injuries  other  than  those  resulting  in  death, 
whether  such  injuries  be  to  the  health  or  reputation  or  to  the  per- 
son of  the  injured  person,  do  not  abate  by  reason  of  his  death,  nor  by 
reason  of  the  death  of  the  person  against  whom  such  cause  of  action 
shall  have  accrued ;  but  in  the  case  of  the  death  of  either  or  both, 
the  cause  of  action  survives  to  and  in  favor  of  the  heirs  and  legal 
representatives  of  such  injured  person,  and  against  the  person,  re- 
ceiver or  corporation  liable  for  such  injuries  and  his  legal  repre- 
sentatives ;  and  so  surviving,  such  cause  may  be  thereafter  prosecuted 
in  like  manner  and  with  like  legal  effect  as  would  a  cause  of  action 
for  injuries  to  personal  property.4 

§  326.  Another  action  pending. 

The  rule  of  law  which  prohibits  the  prosecution  of  two  suits  at 
the  same  time  requires  that  they  shall  be  for  the  same  cause  of  ac- 
tion. The  rule  is  enforced  where  the  plaintiff  can  obtain  the  full 
benefit  of  judicial  process  in  the  first  suit  instituted.  It  does  not 
operate  to  restrict  or  restrain  either  party  from  maintaining  any 
additional  suit  or  suits  which  may  be  essential  to  the  protection  or 
enforcement  of  a  right  which  may  not  be  assured  in  the  first  suit.5 
The  plaintiff  must  be  the  same  in  both  suits.  Thus,  a  former  suit 
pending  on  the  same  cause  of  action  in  the  name  of  the  wife  alone 
is  not  a  good  plea  in  abatement  to  a  suit  in  the  name  of  husband 
and  wife.6  To  sustain  the  plea  the  former  suit  must  have  been 
pending  at  the  commencement  of  the  second  suit,  and  if  it  has  been 
dismissed  or  abandoned  at  the  hearing,  the  plea  will  not  be  sus- 
tained.7 It  is  held  that  a  plea  of  a  former  suit,  if  sustained,  does 

i  Const.,  art.  XVI,  §  26. 
2R.  S.  3020. 
*R.S.  3025. 

4  Acts  1895,  p.  143:  R  S.  3353a. 

5  Bryan  v.  Alford,  1  App.  C.  C.,  §  85;  Langham  v.  Thomaso'n,  5  T.  127. 

6  Langham  v.  Thomason,  5  T.  127. 

7  Hope  v.  Alley,  11  T.  259;  Connor  v.  Saunders,  29  S.  W.  Rep.  1140;  Trawick  v. 


_'7.]  AI;A  II.MKNT  AM*  i>i-r  >N  nxt  A:  .  :;  17 

n<>t  abate   the  second  suit,  but  only  puts  plaintiff  to  his  i>l. 
which  suit  hf  will  prosecute,  :iml  requires  him  to  pay  the  costs  of 
the  suit  abandoned.1 

A  plea  of  a  suit  ponding  in  another  county  on  the  same  cause  of 
action  presents  no  ground  in  bar  or  abatement  of  an  action  in  this 
state.1 

£  327.  Where  some  of  defendants  not  served. 

When?  there  are  several  defendants  in  a  suit,  and  some  of  them 
are  served  with  process  in  due  time  and  others  not  so  served,  the 
plaintiff  may  either  discontinue  as  to  those  not  so  served  and  pro- 
ceed against  those  that  are,  or  he  may  continue  the  suit  until  the 

Martin-Brown  Co.,  74  T.  5™  (12  S.  W.  Rep.  316);  Oldham  v.  Erhart,  18  T.  147. 
An  abandonment  of  the  claim  made  in  reconvention  or  cross-hill  in  another  suit 
setting  up  the  interest  of  the  assignor  of  plaintiff  in  &  legacy  operated  to  defeat 
a  plea  of  the  pendency  of  such  suit  upon  the  same  matter  pleaded  by  the  de- 
fendants. McNVill  v.  Masterson,  79  T.  670  (15  S.  W.  Rep.  673).  That  a  former 
suit  was  pending  when  a  plea  in  reconvention  was  filed  upon  the  same  cause  of 
action  will  not  be  ground  for  abatement  to  the  plea  when  it  is  shown  that  be- 
fore the  hearing  l»-low  the  former  suit  had  been  dismissed.  Trawk-k  v.  Martin- 
Brown  Co.,  74  T.  522  (12  S.  W.  Rep.  216). 

1  Payne  v.  Benham,  16  T.  364.  If  the  former  action  has  been  dismissed  at  the 
time  the  plea  is  acted  upon,  it  is  held,  in  this  case,  that  the  question  becomes 
one  of  costs.  The  court  say  (16  T.  867):  "We  are  aware  that  by  the  strict  rules 
of  practice  in  the  courts  of  common  law  the  facts  so  pleaded  would  have  abated 
the  suit  last  commenced.  We,  however,  regard  it  as  a  question  of  costs,  not  at 
all  involving  the  merits  of  the  cause  of  action.  If  the  two  suits  had  been  still 
pending  at  the  time  the  plea  in  abatement  was  filed,  we  would  have  required 
the  party  to  dismiss  one  and  pay  the  costs  before  proceeding  to  trial  on  the 
other.  ...  If  the  costs  of  the  first  suit  had  not  been  paid  when  it  was  dis- 
missed, and  that  fact  had  been  made  known  to  the  court,  a  rule  could  have  been 
obtained  requiring  the  costs  to  be  paid  or  secured  before  the  party  would  have 
been  permitted  to  proceed  with  the  suit."  This  ruling  is  approved  in  Trawick 
v.  Martin-Brown  Co.,  74  T.  Y,"J.  525  (12  &  W.  Rep.  216),  and  is  held  to  be  in  ac- 
cordance with  the  weight  of  recent  cases  —  citing  Beals  v.  Cameron.  8  How.  Pr. 
414;  Schmidt  v.  Brown,  10  La.  Ann.  26;  Marston  v.  Laurence,  1  Johns.  Cases,  897. 

A  sheriff  under  an  execution  seized  a  herd  of  stock  horses  on  the  range;  on 
the  same  day  and  under  the  same  writ  he  seized  other  work  horses,  taking  them 
from  the  plow  and  wagon  of  the  person  claiming  them.  Forthwith  the  claim- 
ant established  his  claim  to  the  work  horses,  and  by  separate  action  sufl  for 
damages  for  the  seizure  of  the  horses  on  the  range,  and  it  was  held  that  the 
second  action  was  not  barred  by  the  first,  there  being  two  separate  and  distinct 
trespasses.  MiMikin  v.  Smoot,  71  T.  759  (12  a  W.  Rep.  59). 

In  an  attachment  suit  the  defendant  reconvened  for  damages  for  illegally 
seizing  the  goods  of  defendant  under  the  attachment.  Prior  to  *he  reconven- 
tion the  defendant  had  brought  suit  for  damages  for  the  seizure.  The  plaintiff 
pleaded  the  pendency  of  the  independent  suit  for  damages  against  the  r«.  con- 
vention. On  the  trial  the  plaintiff  urged  exceptions  to  the  plea  in  reconvention, 
which  were  ruled  upon  before  the  plea  in  abatement  was  hoard,  and  it  was  held 
that  the  action  of  the  court  upon  the  exceptions  was  not  a  waiver  of  the  plea 
in  abatement,  and  especially  so  wlu-n  no  preemptions  were  taken  at  the  time. 
Trawick  v.  Martin-Brown  Co.,  74  T.  522  (12  S.  W.  Rep.  216). 

"Mex.  Cent.  Ry.  Co.  T.  Charman,  24  &  W.  Rep.  958;  Drake  v.  Brander,  8  T.  351. 
23 


333  ABATEMENT   AND   DISCONTINUANCE   OF   SUITS.  [§  327. 

next  term  of  the  court  and  take  new  process  against  those  not 
served ;  and  no  defendant  against  whom  any  suit  may  be  so  discon- 
tinued shall  be  thereby  exonerated  from  any  liability  under  which 
he  was,  but  may  at  any  time  be  proceeded  against  as  if  no  such 
suit  had  been  brought  and  no  such  discontinuance  entered.1 

It  seems  that  a  discontinuance  is  authorized  by  this  article  as  to 
defendants  not  served,  though  the  cause  of  action  be  joint  and  not 
several.2  In  any  case  in  which  a  defendant  need  not  have  been 
joined  —  where  the  liability  of  the  other  defendants  may  be  enforced 
without  his  presence  in  the  suit, —  the  plaintiff  may  dismiss  as  to 
him,  and  only  those  defendants  whose  liability  is  such  that  they 
might  be  injuriously  affected  are  entitled  to  object.3  A  discontinu- 
ance may  be  entered  as  to  a  joint  maker  of  a  note  not  served.4 

"Where  a  judgment  has  been  reversed  and  the  cause  remanded  for 
want  of  service  on  some  of  the  defendants,  plaintiff  may  discontinue 
as  to  those  not  served,  and  take  judgment  by  default  against  those 
who  have  not  answered.5 

Where  there  are  two  or  more  defendants,  and  there  appears  to 
have  been  service  on  all  but  one,  and  there  is  no  return  as  to  him, 
it  is  error  to  include  him  in  a  general  judgment  by  default;  the  rec- 
ord should  show  some  action  as  to  him,  by  discontinuance  or  other- 
wise. It  is  suggested  that  the  practice  might  be  different  where 
those  who  are  served  appear  and  answer.6  An  error  in  not  discon- 
tinuing as  to  a  Defendant  not  served  will  not  affect  the  validity  of 
the  judgment  against  one  who  was  served.7  And  where  the  one 
served  appears,  it  is  not  error  to  render  judgment  final  by  confes- 
sion against  him  without  disposing  of  the  case  as  to  the  one  not 
served.8  It  is  held  that  the  recital  in  the  record  of  the  appearance 
and  trial  as  to  those  served  is,  in  effect,  a  discontinuance  as  to  those 

» R.  S.  1256. 

2  Ellis  v.  Park,  8  T.  205;  Williams  v.  McNeil,  5  T.  381;  Hawkins  v.  Tinnen, 
10  T.  188. 

3  Cook  v.  Phillips,  18  T.  31;  Austin  v.  Jordan,  5  T.  130;  Anderson  v.  Duffield, 
8  T.  237;-Horton  v.  Wheeler,  17  T.  52;  Shipman  v.  Allee,  29  T.  17. 

4  Robinson  v.  Mattison,  25  T.  Sup.  451.    Where  the  suit  was  on  a  joint  and  sev- 
eral note,  and  there  was  return  of  service  on  one,  it  was  held  that  plaintiff 
might  dismiss  as  to  the  other,  though  there  was  no  return  showing  whether  he 
had  been  served  or  not.    Cook  v.  Phillips,  18  T.  31.    So  in  a  suit  against  the 
master  and  unknown  owners  of  a  vessel,  where  the  master  answered,  but  it  did 
not  appear  whether  citation  had  issued  for  the  owners  or  not,  it  was  held  that 
a  nolle  prosequi  was  properly  entered  after  verdict  as  to  them.    Forbes  v.  Davis, 
18  T.  268. 

"Underbill  v.  Thomas,  24  T.  28a 

6  Rogers  v.  Harrison,  44  T.  169.  *  On  error  by  all  the  defendants  in  such  a  case, 
plaintiff  may  dismiss  as  to  those  not  served.    Chandler  v.  Tanner,  20  T.  1. 
'Reynolds  v.  Adams,  3  T.  167. 
8  Burton  v.  Varnell,  5  T.  139. 


28,  329.]       Ai  r    AND   DISCONTINUANCE   OF    SUITS.  339 

not  served.1  If  one  is  joined  as  a  defendant  who  is  not  liable,  some 
disposition,  of  the  case  must  be  made  as  to  him  before  entering 
judgment  against  those  who  are  liable.2 

(28.  Discontinuance  in  vacation. 

The  plaintiff  may  enter  a  discontinuance  on  the  docket  in  vaca- 
tion, in  any  suit  wherein  the  defendant  has  not  answered,  on  the 
pavment  of  all  costs  that  have  accrued  therein.* 

§  329.  Discontinuance  as  to  a  defendant  served  with  process. 

The  court  may  permit  the  plaintiff  to  discontinue  his  suit ; 
one  or  more  of  several  defendants  who  may  have  been  served  with 
process,  or  who  may  have  answered,  when  such  discontinuance 
would  not  operate  to  the  prejudice  of  the  other  defendants;  but  no 
such  discontinuance  will  in  any  case  be  allowed  as  to  a  principal 
obligor,  except  in  the  cases  provided  for  in  article  1257  of  the   li 
1  Statutes.4 

This  statute  is  permissive,  and  a  discontinuance  may  be  refiiM-.l 
whenever  it  would  operate  to  the  prejudice  of  the  party  as  to  whom 
it  is  sought.  "Whether  or  not  a  discontinuance  may  be  entered  in 
the  appellate  court  in  any  case  as  to  a  defendant  who  has  made  de- 
fense in  the  court  below,  and  has  prosecuted  an  appeal,  it  is  held 
that  it  ought  not  to  be  permitted  in  a  case  in  which  such  defend- 
ant may  be  directly  or  indirectly  injuriously  affected  thereby.5  In 
a  suit  upon  a  joint  and  several  note,  where  all  are  served  and  an- 
swer jointly,  plaintiff  may  discontinue  as  to  one,  provided  no  right 
of  the  others  be  impaired.6  Objection  to  a  discontinuance  as  to  one 

1  Houston  v.  Ward,  8  T.  124;  Greenwood  v.  Watts,  1  App.  C.  C.,  §114    A  plea 
of  coverture  by  one  not  served  with  process,  and  a  discontinuance  as  to  her, 
held  proper.    Shipman  v.  Allee,  29  T.  17. 

2  Young  v.  Davidson,  81  T.  153.    Suit  was  brought  to  foreclose  a  chattel  mort- 
gage against  a  principal  and  surety  on  a  note  declared  on.    The  surety  was  not 
served  with  citation,  nor  named  in  the  judgment.    The  appeal  bond  by  the 
plaintiff  did  not  name  him.  and  it  was  held  that  it  would  be  presumed  that 
suit  was  dismissed  as  to  him.    First  Nat  Bank  of  Decatur  v.  Houts,  85  T.  69 
(19  S.  W.  Rep.  1080). 

'R&1258. 

*  R  S.  1259.  See  the  chapter  on  Parties  for  discontinuance  as  to  a  principal 
obligor;  also  Moore  v.  Janes,  6  T.  227;  Look  v.  Henderson,  4  T.  803:  Rutlu-rfunl  v. 
Harris,  22  T.  106;  Barnett  v.  Taylor,  80  T.  453.  Where  it  is  recited  in  the  judg- 
ment that  the  suit  was  dismissed  as  to  a  defendant  principal  because  he  was 
insolvent,  the  surety  cannot  complain  on  appeal,  unless  it  be  shown  that  the 
suggestion  or  allegation  of  insolvency  was  not  sufficiently  made  to  the  court, 
or  was  not  true  in  fact,  either  by  resistance  at  the  time,  for  cause  shown,  or  by 
plea,  which  should  be  allowed  in  the  nature  of  a  plea  in  abatement  to  the  suit, 
as  left  by  the  improper  dismissal  of  the  principal.  Hooks  v.  Bramlette,  1  A  pp. 

c.  c..  §  sea 

tnick  v.  Noel,  64  T.  406. 

v.  Wheeler,  17  T.  oi 


340  ABATEMENT   AND   DISCONTINUANCE   OF    SUITS.  [§  330. 

joint  defendant  must  be  made  in  the  lower  court,  by  motion,  excep- 
tion or  plea.1 

§  330.  Discontinuance  where  defendant  has  filed  a  counter-claim. 

Where  the  defendant  files  a  counter-claim  seeking  affirmative  re- 
lief, the  plaintiff  will  not  be  permitted,  by  a  discontinuance  of  his 
suit,  to  prejudice  the  right  of  the  defendant  to  be  heard  on  such 
counter-claim.2  At  any  time  before  the  jury  have  retired,  the 
plaintiff  may  take  a  nonsuit,  but  he  shall  not  thereby  prejudice  the 
right  of  an  adverse  party  to  be  heard  on  his  claim  for  affirmative 
relief.8 

It  is  only  when  the  defendant  by  a  counter-claim  seeks  some  af- 
firmative relief  that  the  right  of  the  plaintiff  to  discontinue  the 
entire  cause  is  forbidden.  Obviously  the  defendant  only  seeks  such 
affirmative  relief  w-hen  by  his  own  pleadings  he  prays  for  some 
specific  recovery  that  cannot  be  given  to  him  under  pleadings  that 
are  strictly  defensive  and  that  serve  only  to  compel  the  plaintiff  to 
prove  his  own  cause  of  action.  The  defendant  must  not  only  pray 
for  affirmative  relief,  but  he  must  state  facts  showing  that  he  has  a 
cause  of  action.  If  the  defendant  is  doing  no  more  than  resisting 
the  plaintiff's  recovery,  the  statutes  recognize  the  right  of  the 
plaintiff,  for  his  own  protection,  to  dismiss  the  suit.4  If  a  petition 
in  intervention  shows  such  interest  in  the  subject-matter  of  the  liti- 
gation between  the  parties  as  would  entitle  the  intervener  to  main- 
tain an  independent  action  against  the  plaintiff  or  those  represented 
by  him,  and  to  have  the  relief  sought,  in  whole  or  in  part,  then  the 
intervention  would  not  be  affected  by  a  dismissal  of  the  action  by 
plaintiff.  If  no  such  independent  cause  of  action  be  shown,  it  is  not 
error  to  dismiss  the  intervention  on  dismissal  by  plaintiff.5 

1  Gamble  v.  Talbot,  2  App.  C.  C.,  g  730.    Where  joint  obligors  are  sued,  it  not 
appearing  that  any  one  of  the  defendants  is  a  principal,  it  is  not  error  that  the 
plaintiff  dismissed  as  to  one  of  such  defendants  after  he  was  served  with  cita- 
tion.   Keesey  v.  Old.  82  T.  22  (17  S.  W.  Rep.  928). 

Where  plaintiffs  dismissed  as  to  certain  defendants  who  claimed  an  interest 
in  the  property  in  controversy,  it  was  within  the  discretion  of  the  court  to  per- 
mit the  parties  so  dismissed  to  be  made  defendants  upon  application  of  the  re- 
maining defendants.  Curtis  v.  Wilson,  2  Civ.  App.  646  (21  S.  W.  Rep.  787). 
Though  in  trespass  to  try  title  a  formal  judgment  should  be  rendered  in  the 
district  court,  on  the  disclaimer  of  a  party  defendant,  as  to  such  defendant,  yet 
if  the  cause  proceeds  to  trial  and  judgment  without  further  notice  of  the  de- 
fendant who  disclaims,  the  appellate  court  will,  on  appeal,  regard  the  action  as 
having  been  dismissed  as  to  him,  notwithstanding  the  failure  of  the  record  to 
show  the  fact.  Gullett  v.  O'Connor,  54  T.  408. 

2  R.  S.  1260. 
3R.  S.  1301. 

<Hoodless  v.  Winter,  80  T.  638  (16  S.  W.  Rep.  427);  Block  v.  Weiller,  61  T.  692. 
5  State  v.  Farmers'  L.  &  T.  Co.,  81  T.  530  (17  S.  W.  Rep.  60).    Where  the  plaint  •' 
iffs  dismiss  their  suit  after  an  intervention  has  been  filed,  such  dismissal  will 


§  331.]  ABA  I  -NTIXl-AXCE    OF    SUITS.  34:1 

Tf  a  pit -a  in  reconvention  presents  no  cause  of  action,  it  will  not 
prevent  a  nonsuit ; l  otherwise  if  the  plea  is  well  pleaded.2  The  rule 
applies  to  a  case  where  the  plaintiff  sues  to  rescind  a  contract  for  a 
salt'  of  land,  and  the  defendant  admits  the  contract  and  prays  for 
specific  performance.1  It  is  not  important  as  to  the  designation  of 
the  defensive  plea,  whether  a  plea  in  reconvention  or  a  petition  iu 
the  nature  of  a  cross-action.4 

A  defendant  in  trespass  to  try  title  is  entitled  to  a  hearing  on  his 
plea  for  atlinnative  relief.5  If  the  defendant  sets  up  title  in  him- 
self, and  prays  judgment  removing  cloud  cast  by  plaintiff's  claim, 
he  is  entitled  to  a  hearing  as  against  plaintiff's  right  to  a  nonsuit ; " 
but  a  nonsuit  may  be  allowed  in  such  a  case  where  defendant  offers 
no  evidence  in  support  of  his  claim.7 

£  331.  Dismissal  for  want  of  prosecution. 

The  statute  provides  for  the  continuance  of  a  cause,  but  it  seems 
that  where  neither  party  appears  when  a  case  is  regularly  called 
for  trial,  the  court  is  bound  to  dismiss  for  want  of  prosecution,  hav- 
ing no  authority  to  suffer  a  continuance  unless  it  be  allowed  by 
operation  of  law  or  by  consent  of  parties,  or  for  a  sufficient  cause 
supported  by  affidavit.  It  is  not  necessary  that  the  entry  of  dis- 
missal should  recite  that  the  plaintiff,  being  called,  caine  not,  or 
that  the  suit  was  called  in  its  regular  order,  or  that  the  defendant 
appeared  and  moved  a  dismissal.8 

Where  the  court,  of  its  own  motion,  dismisses  a  case  for  want  of 

not  affect  the  legal  rights  of  the  intervener,  whether  the  action  of  the  plaintiffs 
and  of  the  court  be  technically  a  nonsuit  or  a  discontinuance.  See,  also,  Field 
v.  Gautier,  8  T.  74. 

i  Frois  v.  Mayfield,  31  T.  366. 

2Egery  v.  Power,  5  T.  501;  Thomas  v.  Hill,  3  T.  270;  Bradford  v.  Hamilton,  7 
T.  55.  See  Home  v.  Black,  24  T.  293;  Brown  v.  Pfouts,  53  T.  221. 

;)  .McCoy  v.  Jones,  9  T.  363. 

*  Bradford  v.  Hamilton,  7  T.  55.    It  is  said  that  a  plea  in  reconvention  does  not 
prevent  a  nonsuit,  but  that  the  cause  may  proceed  to  judgment  on  the  rl.-iim 
!«et  up  notwithstanding  the  nonsuit.    Peck  v.  McKellar,  33  T.  234;  McKie  v. 
Simpkins,  1  A  pp.  C.  C.,  §  278.    Where  plaintiff's  case  was  dismissed  for  want  of 
prosecution,  a  trial  and  judgment  upon  defendant's  claim  in  reconvention  was 
not  error.    Jackson  v.  Brooks,  1  App.  C.  C.,  §  679. 

s  French  v.  Groesbeck,  8  Civ.  App.  19  (27  S.  W.  Rep.  43);  Midkiff  v.  Stephens, 
29  S.  W.  Rep.  54. 

•Schmidt  v.  Talbert,  74  T.  451  (12  &  W.  Rep,  284). 

T  Block  v.  Weiller,  61  T.  692;  Hoodless  v.  Winter.  80  T.  638  (16  a  W.  Rep.  1J7  . 
Where  a  vendee  brought  an  action  of  trespass  to  try  title  against  a  stranger,  and 
causod  his  vendors  to  be  cited  to  defend  and  maintain  the  title  according  to 
their  warranty,  it  was  held  that  the  vendors  could  not  confess  a  breach  of  the 
warranty  and  pray  a  rescission  of  the  sale,  nor,  by  pleading  a  fraudulent  com- 
bination between  the  plaintiff  and  defendant  to  suffer  a  recovery,  prevent  a  dis- 
missal of  the  suit  by  the  plaintiff.  White  v.  Williams,  13  T.  '•.'•W. 

*  Houston  v.  Jennings,  13  T.  487. 


342  ABATEMENT   AND   DISCONTINUANCE    OF    SUITS.  [§  332. 

prosecution,  it  has  the  power  to  reinstate  it  at  the  same  term  with- 
out notice  to  the  defendant.1  Where  exceptions  to  a  part  of  a  peti- 
tion are  sustained,  and  the  plaintiff  refuses  to  amend  and  to  further 
prosecute,  the  case  is  properly  dismissed.2  Where  plaintiff  is  not 
using  sufficient  diligence  in  the  prosecution  of  his  suit,  defendant's 
remedy  is  to  force  him  to  a  trial,  and  not  to  dismiss  for  want  of 
prosecution  when  plaintiff  appears  to  represent  his  cause.3 

§  332.  Effect  of  discontinuance. 

A  discontinuance  is  not  a  bar  to  another  action.4  A  discontinu- 
ance as  to  all  the  plaintiffs  amounts  to  a  nonsuit,  and  a  judgment 
of  nonsuit  is  the  proper  entry  in  such  case.5  It  is  held  that  a  dis- 
missal as  against  one  or  more  members  of  a  partnership  operates 
as  a  dismissal  of  the  suit  against  the  partnership,  and  leaves  the 
remaining  members  to  ans\ver  as  individuals.6  Service  on  one  mem- 
ber of  a  firm  being  sufficient  under  the  statute  to  authorize  a  judg- 
ment against  such  member  and  against  the  firm,  the  entry  of  such 
a  judgment  is  an  abandonment  of  all  proceedings  against  the  mem- 
ber not  served ;  the  statute  does  not,  it  is  held,  contemplate  a  dis- 
continuance as  to  him.7 

In  actions  of  trespass  to  try  title,  a  discontinuance  or  abandon- 
ment of  the  suit  by  one  of  the  plaintiffs  does  not  abate  the  suit  nor 
preclude  a  recovery  by  the  other  plaintiff.8  An  action  brought  for 
partition  abates  as  such  on  the  dismissal  of  the  suit  as  to  one  de- 
fendant whose  tenancy  in  common  is  admitted  by  the  petition.  All 
parties  in  interest  are  necessary  parties.9 

1  Carlton  v.  Miller,  2  Civ.  App.  619  (21  S.  W.  Rep.  697). 

2  Caruthers  v.  Slaughter,  2  S.  W.  Rep.  526. 

3  Roemer  v.  Shackelford.  23  S.  W.  Rep.  87.   Where  excep'tions  to  a  petition  are 
sustained  for  a  misjoinder  of  plaintiffs,  and  a  part  of  the  plaintiffs  dismiss  their 
suit,  a  judgment  of  dismissal  as  to  another  is  properly  rendered,  where  he  neg- 
lects to  amend  or  otherwise  to  signify  his  desire  to  proceed  to  judgment.  Blum 
v.  Goldman,  66  T.  621  (1  S.  W.  Rep.  899).    A  delay  of  twenty-five  years,  during 
which  time  no  steps  were  taken  to  docket  a  case  and  bring  it  to  trial,  will  au- 
thorize the  presumption  that  the  case  is  abandoned,  and  it  may  be  dismissed  for 
want  of  prosecution  on  motion  of  the  defendant.     A  much  shorter  delay  would 
authorize  a  dismissal.    Punchard  v.  Delk,  77  T.  104  (13  S.  W.  Rep.  615). 

4  Foster  v.  Wills,  4.  T.  101. 
6  Kelly  v.  Kelly,  23  T.  437. 

6  Frank  v.  Tatum,  87  T.  204  (26  S.  W.  Rep.  900;  23  S.  W.  Rep.  511). 

7  Burnett  v.  Sullivan,  58  T.  535.     It  seems  that  plaintiff  may  dismiss  as  to  one 
of  two  partners,  where  they  are  both  duly  cited,  and  proceed  to  judgment 
against  the  other.    White  v.  Leavitt,  20  T.  703.    See  Tulane  v.  McKee,  10  T.  335. 
When  suit  is  against  partners,  all  of  whom  have  appeared  in  the  case,  and  two 
of  them  pleaded  their  privilege  to  be  sued  in  the  county  of  their  residence,  and 
the  plea  is  sustained,  it  is  error  to  dismiss  the  whole  case.    Judgment  should  be 
rendered  against  the  defendant  who  filed  no  plea  of  privilege,  binding  his  es- 
tate and  the  partnership  property.    Kemp  v.  Bank,  4  Civ.  App.  648  (23  S.  W. 
Rep.  916). 

8  Biencourt  v.  Parker,  27  T.  558. 

OMcKinney  v.  Moore,  73  T.  470  (11  S.  W.  Rep.  493). 


§  333.]  ABATEMENT   AND   DISCONTINUANCE   OF    SUITS.  343 

§  333.  Setting  aside  judgment  of  dismissal. 

A  motion  or  application  to  reinstate  a  case  is  addressed  largely 
to  the  discretion  of  the  court,  and  if  the  dismissal  is  caused  by  a 
ruling  which  is  not  erroneous,  the  refusal  of  the  motion  is  not 
ground  of  error; l  also  where  there  has  been  a  dismissal  for  want  of 
prosecution,  caused  solely  by  plaintiffs  laches.2  The  trial  courts 
cannot  entertain  such  a  motion  at  a  subsequent  term.3  But  it  is 
held  that  if  a  cause  be  dismissed  through  mistake,  it  may,  on  suffi- 
cient cause  shown,  and  notice  to  the  opposite  party,  be  reinstated 
at  the  next  term,  either  on  motion  or  by  petition.4 

An  order  that  the  "  cause  be  reinstated  on  the  docket  upon  the 
condition  of  plaintiff  paying  all  costs  accrued  "  operates  to  tax  the 
plaintiff  with  the  costs,  and  is  not  conditional  upon  the  prepayment 
of  the  costs.5 

1  Osborne  v.  Scott,  13  T.  59;  Easterling  v.  Blythe,  7  T.  210. 

2  Chambers  v.  Shaw,  23  T.  165. 

»  Harman  v.  Lawler,  32  T.  590;  Ewing  T.  Perry,  35  T.  777. 

4  Johnson  v.  Cheney,  17  T.  336.  A  petition  filed  after  the  lapse  of  two  years 
was  denied  on  the  ground  of  laches.  Houston  v.  Jennings,  12  T.  487.  The  remedy 
for  the  revision  of  an  error  in  the  dismissal  of  a  suit  for  want  of  prosecution,  or 
for  the  refusal  at  another  terra  to  reinstate  the  case,  is  by  appeal  or  writ  of 
error,  and  not  by  a  second  application  for  the  same  relief  at  a  subsequent  term 
in  the  same  court.  Chambers  v.  Shaw,  23  T.  165. 

At  September  term.  1889,  defendant  suggested  the  death  of  one  of  the  plaint- 
iffs. May  28,  1890,  on  motion  of  defendant,  suit  was  dismissed  as  to  the  party 
plaintiff  whose  death  had  been  suggested.  On  June  10,  1890,  and  during  the 
term,  application  was  made  by  one  shown  by  affidavit  to  be  the  sole  heir,  to 
set  aside  the  order  dismissing  the  case,  and  to  be  allowed  to  appear  in  the 
case  as  plaintiff,  showing  merits,  and  it  was  held  error  to  refuse  to  set  aside  the 
-al.  Musselman  v.  Strohl,  83  T.  473  (18  S.  V7.  Rep.  857);  Armstrong  v. 
Nixon,  16  T.  610. 

A  court  has  control  of  its  judgments  until  the  end  of  the  terra  at  which'they 
are  rendered;  and  when  a  judgment  has  been  rendered  and  afterward  set  aside 
at  the  same  term,  the  cause  stands  precisely  as  if  the  judgment  had  never  been 
rendered.  This  rule  applied  where,  on  dismissing  suit  as  to  a  husband  the  wife 
pleaded  non-joinder  of  her  husband,  and  the  order  of  dismissal  was  set  aside, 
and  her  plea  of  coverture  overruled.  No  error  was  committed  by  the  court  in 
setting  aside  the  order  of  dismissal  and  permitting  pleadings  to  be  filed  making 
the  husband  a  party  defendant.  Mitchell  v.  Mitchell,  84  T.  303  (19  S.  "W. 

A  judgment  was  reversed  for  misjoinder  of  parties,  and  pending  an  appeal  a 
compromise  was  effected  with  two  of  the  plaintiffs,  and  the  remaining  plaintiff 
dismissed  as  to  them  and  proceeded  alone  for  his  interest  It  was  held  that  the 
two  as  to  whom  the  cause  was  dismissed  were  out  of  the  case  for  all  purposes, 
and  could  not  appear  and  amend  their  petition  and  proceed  to  judgment.  They 
could  only  come  in  by  a  new  suit  and  service  of  process.  Sowell  v.  Jones,  4  S. 
\V.  Rep.  620. 

*Hall  v.  Mi-Kay.  7s  T.  248  (14  S.  W.  Rep.  615);  Fenn  v.  Railway.  76  T.  380  (13 
S.  W.  Rep.  -?:''.  Where  plaintiffs  suit  has  been  dismiss?d  at  his  instance,  be- 
fore answer,  upon  payment  of  costs  as  required  by  statute,  defendant  cannot 
have  the  case  reinstated;  but  an  error  in  allowing  defendant  to  reinstate  the 
case  is  waived  by  plaintiff  by  his  filing  new  pleadings  and  going  to  trial.  \\\-r- 
ner  v.  Kastens,  -JO  s.  \V.  Rep.  :j,'-,'. 


ABATEMENT   AND   DISCONTINUANCE;   OF   SUITS.       [§§  334-336. 

§  334.  Requisites  of  scire  facias  and.  returns. 

The  scire  facias  to  bring  in  new  parties,  and  returns  thereon, 
must  conform  to  the  requisites  of  citations  and  the  returns  thereon, 
under  the  provisions  of  chapter  6,  title  30,  of  the  Revised  Statutes,1 

§  335.  Aotions  by  and  against  railroad  companies. 

A  suit  pending  for  or  against  any  railroad  company  at  the  time  a 
sale  may  be  made  of  its  road-bed,  track,  franchise  and  chartered 
privileges  does  not  abate,  but  may  be  continued  in  the  names  of  the 
trustees  of  the  sold-out  company.2  The  sale  here  contemplated  is  a 
sale  "  by  virtue  of  an  execution,  order  of  sale,  deed  of  trust,  or  any 
other  power." 3  The  statute  contemplates  that  a  suit  pending  against 
a  railway  corporation  when  its  franchise  and  other  property  is  sold 
may  be  continued  against  the  directors  or  managers  of  the  sold-out 
company.4 

§  336.  Death  of  party  pending  appeal. 

If  any  party  to  the  record,  in  any  cause  taken  to  the  supreme 
court  or  court  of  civil  appeals  by  appeal  or  writ  of  error,  shall  die 
after  the  appeal  bond  has  been  filed  and  approved,  or  after  the  writ 
of  error  has  been  served,  and  before  the  cause  has  been  decided  by 
the  supreme  court  or  court  of  civil  appeals,  the  cause  shall  not  abate 
by  such  death,  but  the  court  shall  proceed  to  adjudicate  such  cause 
and  render  judgment  therein  as  if  all  the  parties  thereto  were  liv- 
ing, and  the  judgment  shall  have  the  same  force  and  effect  as  if 
rendered  in  the  life-time  of  all  the  parties  thereto.5  The  same  pro- 
vision is  made  with  reference  to  causes  transferred  to  the  court  of 
civil  appeals  from  the  supreme  court  or  court  of  appeals.6 

1  R  S.  1261. 

2  R.  S.  4506. 

3  R  S.  4549. 

«  Texas  Trunk  Ry.  Co.  v.  Lewis,  81  T.  1  (16  S.  W.  Rep.  647).  Upon  the  dissolu- 
tion of  a  private  corporation  all  actions  at  law  against  it  abate.  It  would  seem 
that  a  suit  in  equity  abated  by  such  dissolution  might  be  revived.  Limitation 
will  run  against  a  bill  of  revivor  to  make  proper  parties,  such  existing,  who  rep- 
resented the  defunct  corporation  and  who  could  be  made  parties.  Life  Ass'n  of 
Am.  v.  Goode,  71  T.  90  (8  S.  W.  Rep.  639). 

5R  S.  973,  1026;  Acts  1892,  pp.  19,  25.  The  following  proviso  was  appendad  to 
this  article  before  the  amendment:  "  This  act  shall  not  apply  to  any  suit  or  ac- 
tion in  which  the  cause  of  action  does  not  survive  in  favor  of  or  against  the 
legal  representatives  of  a  deceased  person."  Sayles*  Civ.  Stat.,  art.  1044. 

6  Acts  1892,  p.  25;  R.  S.  1026.  Judgment  for  damages  for  personal  injuries  was 
recovered  against  a  railroad  company;  after  an  appeal  was  perfected  by  the 
company  the  plaintiff  died,  and  it  was  held  that  the  suit  did  not  abate,  and  that 
it  was  not  necessary  to  bring  in  the  heirs  of  plaintiff.  Pullman  Palace  Car  Co. 
v.  Fowler,  6  Civ.  App.  755  (27  S.  W.  Rep.  268). 

In  Teas  v.  Robinson,  11  T.  774,  it  was  held  that  where  plaintiff  died  after 
judgment,  the  proper  course  for  defendant  was  to  sue  out  his  writ  of  error,  stat- 
ing the  fact  of  plaintiff's  death  in  the  petition,  and  praying  for  citation  to  his 
representatives, 


§§  337,  338.]       ABATEMENT    AND    DISCONTINUANCE   OF    SUITS. 

Where  the  appellee  died  pending  the  appeal  in  the  supreme  court, 
and  the  heirs  alleged  that  there  had  been  no  administration,  and  no 
-ity  for  one,  the  supreme  court  ordered  that  upon  proving 
these  facts  the  heirs  might  be  made  parties.1 

§  337.  Actions  against  receivers. 

The  discharge  of  a  receiver  does  not  work  an  abatement  of  a  suit 
against  him,  nor  in  any  way  affect  the  right  of  a  uerson  to  sue  him 
if  he  sees  proper.2 

?'  338.  Judgment  against  a  dead  person. 

The  rule  seems  to  be  that  a  judgment  rendered  in  a  suit  after  the 
death  or  insanity  of  a  party  is  not  void,  but  voidable  only,  and  that  tho 
proper  proceedings  must  be  instituted  within  a  reasonable  time  for 
relief  against  the  judgment  by  persons  in  interest.  Where  the  death 
of  a  party  has  been  suggested,  and  leave  has  been  granted  for  tho 
executor  to  enter  himself  as  a  party,  but  the  order  has  not  been 
carried  into  the  minutes,  the  error  in  the  judgment  results  from  a 
defect  in  the  record,  and  might  be  obviated  by  a  correction  by 
the  notes  of  the  judge  on  his  docket.  But  where  no  suggestion  of 
death  has  been  made,  and  the  legal  representative  has  not  made 
himself  a  party,  the  error  is  one  of  fact,  and  relief  must  be  had  by 
a  petition  in  the  nature  of  a  bill  of  review,  or  for  a  new  trial,  or  by 
motion  to  set  the  judgment  aside.3 

The  plaintiff  in  an  action  of  trespass  to  try  title  died  in  Septem- 
ber, 1878,  and  fifteen  months  thereafter  the  case  was  dismissed,  the 
heirs  not  having  been  brought  in.  It  was  held  that  the  heirs  miirht 
have  had  the  case  reinstated  within  a  reasonable  time  after  the 
order  of  dismissal,  but  that  by  delaying  till  1885,  when  a  new  suit 
was  brought,  the  order  of  dismissal  became  final  and  valid  against 
the  heirs ;  and  the  original  suit,  not  having  been  prosecuted  with 
effect,  did  not  stop  the  running  of  the  statute  of  limitations.4 

i Gayle  v.  Hoffman,  29  T.  1. 

-'  R.  a  1473,  1480. 

»  McClelland  v.  Moore,  48  T.  855;  Giddfngs  v.  Steele,  28  T.  732.  In  Clayton  v. 
Preston,  54  T.  418,  the  death  of  the  defendant  wag  suggested,  but  the  legal  rep- 
resentative was  not  brought  in,  and  it  was  held  that  a  judgment  sustaining  a 
plea  in  abatement,  which  had  been  filed  by  the  defendant,  and  dismissing  the 
suit,  was  void.  The  case  was  remanded  to  make  proper  parties.  Armstrong  v. 
Nixon,  16  T.  610,  is  similar  in  effect 

\Vh-n  the  court  has  acquired  jurisdiction  of  the  person  of  &  defendant  by 
citation,  appearance  and  answer,  and  he  is  represented  by  counsel,  his  death  or 
insanity  before  judgment,  no  suggestion  of  the  game  being  made,  renders  the 
judgment  voidable  only.  Fleming  v.  Seeligson,  57  T.  -VJ4:  Milum  Cu  v.  Robert- 
son, 47  T.  222;  Best  v.  Nix,  6  Civ.  A  pp.  349  (25  S.  W.  Rep.  130). 

«  Harrison  v.  Mr-Murray.  71  T.  122  (8  8.  W.  Rep.  612).  A  judgment  rendere  1 1  y 
a  court  of  competent  jurisdiction,  partitioning  real  estate,  was  objected  to  in  a 
collateral  proceeding  because  it  appeared  from  evidence  aliunde  that  one  of  two 


346  ABATEMENT   AND   DISCONTINUANCE   OF    SUlfS.  [§  339. 

A  judgment  of  dismissal  as  to  a  deceased  plaintiff  is  voidable  by 
his  heirs,  and  may  be  set  aside  on  motion  made  during  the  term,  or 
by  petition  subsequent  thereto  in  the  nature  of  a  writ  of  error 
coram  nobis.1 

§  339.  Party  becoming  insane  before  verdict. 

Where  a  person  sued  for  damages  for  personal  injuries  and  be- 
came insane  before  verdict,  it  was  held  error  to  permit  the  wife  to 
prosecute  the  suit  to  judgment  in  her  own  name.  The  statute  pro- 
vides for  the  appointment  of  a  guardian  of  an  insane  person,  and 
such  a  person  must  be  represented  by  a  guardian  in  all  transactions 
concerning  his  estate.2  It  seems  that  a  judgment  against  an  insane 
defendant  is  not  void  where  he  is  represented  by  counsel  and  no 
suggestion  of  insanity  has  been  made.3  A  judgment  against  a  luna- 
tic, entered  on  an  agreement  made  with  his  counsel,  no  guardian 
having  been  appointed  and  no  notice  of  the  insanity  having  been 
taken  by  the  court,  is  held  to  be  voidable  only,  and  binding  on  par- 
ties and  privies  until  set  aside  in  a  direct  proceeding;  it  cannot  be 
attacked  collaterally.4  This  seems  to  be  the  general  doctrine.5 

partners,  between  whom  and  another  party  the  partition  was  made,  was  dead 
when  the  judgment  was  rendered.  Held,  that  the  judgment  was  properly  ad- 
mitted in  evidence,  the  record  showing  an  acquiescence  of  all  parties  in  inter- 
est, and  the  objection  being  raised  by  one  not  interested  under  the  partition. 
Howard  v.  McKenzie,  54  T.  171. 

1  Musselman  v.  Strohl,  83  T.  473  (18  S.  W.  Rep.  857);  Armstrong  v.  Nixon,  16  T. 
611. 

2  Tex.  &  Pac.  Ry.  Co.  v.  Bailey,  83  T.  19  (18  S.  W.  Rep.  481). 

3  Fleming  v.  Seeligson,  57  T.  524    In  a  suit  to  vacate  a  decree  entered  on 
March  7,  in  accordance  with  an  agreement  of  parties  made  on  March  4,  based 
on  the  alleged  insanity  of  the  plaintiff  at  both  dates,  it  was  held  that  a  finding 
of  insanity  at  both  dates  was  necessary  to  authorize  a  setting  aside  of  the  de- 
cree.   Brown  v.  Rentfro,  57  T.  327. 

*  Denni  v.  Elliott,  60  T.  337. 

8  Freeman  on  Judgments,  §  152;  Sternberg  v.  Schoolcraft,  2  Barb.  155;  Clarke 
v.  Dunham,  4Denio,  262;  Robertson  v.  Lain,  19  Wend.  649. 


CHAPTER  XV. 

CHANGE  OF  VENUE. 


g  340.  By  consent 

341.  On    the    application    of    either 

party. 

342.  Judge  may  inquire  into  truth  of 

application. 


§  343.  To  what  county. 
344  Duty  of  clerk. 

345.  Time  of  making  application. 

346.  Matters  of  practice. 


§  340.  By  consent. 

The  court  may,  upon  the  written  consent  of  the  parties  to  a  suit 
or  their  attorneys,  filed  with  the  papers  of  the  cause,  by  an  order 
entered  on  the  minutes,  transfer  the  same  for  trial  to  the  court  of 
any  other  county  having  jurisdiction  of  the  subject-matter  of  the 
suit.1 

£  341.  On  the  application  of  either  party. 

A  change  of  venue  may  be  granted  in  any  civil  cause  upon  the 
application  of  either  party,  supported  by  his  own  affidavit  and  the 
affidavit  of  at  least  three  credible  persons,  residents  of  the  county 
in  which  the  suit  is  pending,  for  any  of  the  following  causes: 

1.  That  there  exists  in  the  county  where  the  suit  is  pending  so 
great  a  prejudice  against  him  that  he  cannot  obtain  a  fair  and  im- 
partial trial. 

2.  That  there  is  a  combination  against  him  instigated  by  influ- 
ential persons  by  reason  of  which  he  cannot  expect  a  fair  and  im- 
partial trial. 

3.  For  other  good  and  sufficient  cause,  to  be  determined  by  the 
court.2 

Provision  is  also  made  for  transferring  to  a  new  county  suits 
which  may  be  pending  in  any  county  out  of  the  territory  of  which 
the  new  county  is  created.3  But  the  statute  does  not  apply  to  cases 
pending  and  properly  brought  in  a  county  to  which  another  county 
was  attached  for  judicial  purposes,  where  such  latter  county  was 
enlarged  in  its  boundaries  but  without  alteration  in  the  limits  of 
the  county  where  the  suit  was  pending.  Such  alteration  of  the 
boundaries  of  the  attached  county  affords  no  ground  for  change  of 
venue  to  the  county  so  enlarged  and  from  the  county  not  affected 
in  its  boundaries.4 

*  R  S.  1270. 

2R  S.  1271. 
3R.S.  1274. 
«  Dodson  v.  Bunton,  81  T.  655  (17  S.  W.  Rep.  507). 


348  CHANGE    OF   VENUE.  [§  341. 

The  disqualification  of  a  judge  of  the  district  court  will  not  au- 
thorize a  change  of  venue.1 

The  presumption  is  in  favor  of  the  action  of  the  court  in  grant- 
ing a  change  of  venue ;  the  presumption  is  that  the  circumstances 
existed  which  brought  the  case  within  the  provisions  of  the  statute.2 
The  motion  is  addressed  mainly  to  the  discretion  of  the  judge,  and 
his  judgment  will  not  be  revised  unless  it  appear  that  injustice 
has  been  done,  or  that  some  principle  has  been  violated,  although 
a  different  conclusion  upon  the  facts  presented  might  have  been 
equally  satisfactory  to  the  appellate  court,  if  the  question  had  been 
presented  as  an  original  one  for  its  determination.3  The  court  to 
which  a  change  of  venue  is  taken  cannot  revise  the  action  of  the 
other  court  in  granting  the  change  by  dismissing  the  case  for  want 
of  jurisdiction.  And  where  there  is  no  bill  of  exceptions  or  state- 
ment of  facts  upon  which  the  court  acted,  the  court  of  civil  appeals 
will  presume  that  the  proceedings  were  regular.4 

Prejudice  in  the  community  against  a  title  by  which  defendant 
proposes  to  defend  an  action  of  forcible  entry  and  detainer  is  not  a 
good  cause  for  a  change.5 

An  order  changing  the  venue  of  a  cause  confers  jurisdiction  on 
the  court  to  which  the  cause  is  sent  if  the  order  is  based  on  the  ex- 
istence of  any  of  the  statutory  causes  for  changing  venue.  When 
the  order  recites  that  it  was  made  on  motion  of  defendant,  and 
it  appears  that  the  order  was  based  on  the  existence  of  a  cause 
which  under  the  law  authorised  the  change,  the  recital  will  not 
affect  the  jurisdiction  if  an  inspection  of  the  proceedings  shows 
that  the  change  of  venue  was  ordered  on  plaintiff's  motion,  sup- 
ported by  affidavits.6  Where  a  change  is  ordered  in  a  case  not  au- 
thorized by  law,  the  court  to  which  the  case  is  sent  may  send  it 
back.7 

A  motion  for  change  of  venue  on  the  ground  of  prejudice  is  prop- 
erly overruled,  where  it  appears  that  the  motion  and  supporting 
affidavit  have  been  on  file  a  year  before  the  court  is  asked  to  act 
upon  them.  It  will  not  be  presumed  that  the  prejudice  continues 
to  the  time  of  the  hearing.8 

1  R,  8.  1069,    The  following  cases,  based  on  the  disqualification  of  the  judge, 
are  no  longer  of  any  force:  Rogers  v.  Watrous,  8  T.  63;  Dewitt  v.  Herron,  39  T. 
675;  H.  #  T.  C.  Ry.  Co.  v.  Ryan,  44  T,  437;  Hawpe  v,  Smith,  23  T.  410;  Murray  v. 
Broughton,  46  T.  352, 

2  Hall  v,  Jackson,  3  T.  305, 

3  San  Antonio  v,  Jones,  28  T,  19, 

«  Harris  v.  Sohuttler,  24  S,  W.  Rep,  989. 
s  Warren  v.  Kelly,  17  T.  544 

6  Dimmitt  v.  Robbins,  74  T,  441  (13  S.  W,  Rep,  94), 

7  Rogers  v,  Watrous,  8  T.  62. 

e  Mills  v,  Paul,  30  S,  W,  Rep,  588, 


13.]  CHANGE   OF   VKNTE.  349 

g  342.  Judge  may  inquire  into  truth  of  application. 

Where  application  fora  change  of  venue  is  made  in  conformity  to 
the  requirements  of  the  statute,  it  must  be  granted,  unless  the  cred- 
ibility of  the  persons  making  the  application,  or  their  means  of 
knowlcilrre,  or  the  truth  of  the  facts  set  out  in  the  application,  be 
attacked  by  the  affidavit  of  a  credible  person;  if  the  application  is 
thus  attacked,  the  issue  formed  will  be  tried  by  the  judge,  and  the 
application  granted  or  refused,  as  the  law  and  the  facts  may  war- 
rant.1 By  the  second  section  of  this  act  it  is  expressly  stated  that 
the  act  was  necessary  to  correct  an  abuse  of  the  privilege  granted 
to  change  the  venue  of  cases.  Formerly  the  only  inquiry  the  judge 
was  authorized  to  make  was  as  to  the  credibility  of  the  persons 
making  the  affidavit,  and  no  counter-affidavits  or  rebutting  testi- 
mony was  allowed.2  A  local  agent  of  a  railroad  company,  which 
is  a  party  to  the  suit,  is  qualified  to  make  the  affidavit.' 

S  343.  To  what  county. 

Upon  the  grant  of  a  change  of  venue,  the  cause  must  be  removed 
to  some  adjoining  county,  the  court-house  of  which  is  nearest  to 
the  court-house  of  the  county  in  which  the  suit  is  pending,  unless 
it  be  made  to  appear  in  the  application  that  such  nearest  county  is 
subject  to  some  objection  sufficient  to  authorize  a  change  of  venue 
therefrom  in  the  first  instance;  but  the  parties  may  by  consent 
agree  that  the  venue  may  be  changed  to  some  other  county,  and 
the  order  of  court  shall  conform  to  such  agreement.4 

The  nearest  court-house,  in  the  meaning  of  the  statute,  is  not 
necessarily  the  one  nearest  by  geometrical  measurement,  but  may 
be  the  one  most  convenient  of  access,  and  nearest  by  the  usual 
traveled  route.  The  question  as  to  which  county  is  the  nearest 
must  be  determined  by  the  judge  who  orders  the  change  of  venue, 
and  cannot  be  reopened  by  the  court  to  which  the  venue  is  changed.* 
It  is  held  that  the  nearest  court-house  does  not  necessarily  mean 
the  court-house  most  accessible  by  rail,  and  that  the  expression  of 
the  court  in  Shaw  v.  Cade,  54  T.  307,  was  not  intended  as  author- 
ity for  such  latitude  of  construction.8 

When  the  venue  of  a  case  pending  in  the  county  court  is  changed 

» Acts  1893,  p.  2;  R.  S.  1272. 

»Saylea'  Civ.  Stat,  art.  1272;  Salinas  v.  Stillman,  25  T.  12;  Farley  v.  Deslonde, 
58  T.  5885  Daugherty  v.  Harris,  2  U.  G  458. 

» T.  &  P.  Ry,  Co,  v.  Allen,  7  Civ.  App,  214  (26  8,  W.  Rep.  434);  T.  &  P.  Ry.  Co. 
v.  Pierce,  80  &  W.  Rep.  1122. 

<  R.  S.  1273. 

« Shaw  v.  Cade,  54  T.  307.  A  case  for  a  change  of  venue  having  arisen,  the 
court  in  designating  the  county  to  which  the  venue  is  to  be  changed  acts  within 
its  jurisdiction,  and  if  it  commits  an  error  it  is  not  one  which  makes  the  order 
a  nullity  so  as  to  affect  the  jurisdiction  of  the  new  tribunal 

*  Loonie  v.  Tillman,  3  Civ.  App.  332  (22  &  W.  Rep.  524). 


350  CHANGE   OF   VENUE.  [§§  344,  345. 

to  a  county  whose  county  court  is  abolished,  it  is  proper  for  the 
district  court  of  the  county  to  which  the  cause  is  removed  to  enter- 
tain jurisdiction.  "When  the  case  reaches  the  county  to  which  it  is 
removed,  the  jurisdiction  of  the  district  court  attaches,  and  is  the 
same  as  to  the  matters  involved  as  though  the  action  had  originally 
been  brought  in  that  court,  and  no  notice  to  plaintiff  of  a  plea  in 
reconvention  filed  in  the  district  court  after  change  of  venue  is  re- 
quired.1 

§  344.  Duty  of  clerk. 

When  an  order  for  a  change  of  venue  has  been  granted  by  the 
court  the  clerk  shall  immediately  make  out  a  correct  transcript  of 
all  the  orders  made  in  the  cause,  certifying  thereto  officially  under 
the  seal  of  the  court,  and  transmit  the  same  with  the  original  pa- 
pers in  the  cause  to  the  clerk  of  the  court  to  which  the  venue  has 
been  changed.2 

It  is  the  duty  of  the  party  prosecuting  the  cause  to  see  that  it  is 
transferred  within  a  reasonable  time.  What  will  be  a  reasonable 
time  will  depend  upon  the  circumstances.4  The  witnesses  sum- 
moned in  the  case  are  not  bound,  without  more,  to  follow  the  case 
to  the  other  county.4  Where  the  case  is  not  transferred,  and  the 
parties  appear  in  the  court  ordering  the  change  and  litigate  the 
case  to  final  judgment,  it  will  be  presumed  that  the  change  of  venue 
was  waived.4  Where  a  change  of  venue  is  ordered,  and  the  plaint- 
iff fails  to  transfer  the  record  in  proper  time,  the  court  to  which 
the  venue  was  changed,  for  good  cause  shown,  will  permit  it  to  be 
docketed  at  a  subsequent  time,  or,  being  already  docketed,  will  re- 
fuse to  dismiss  it.' 

§  345.  Time  of  making  application. 

The  statute  fixes  no  time  within  which  a  motion  for  a  change  of 
venue  must  be  made,  and  where  it  was  filed  one  year  and  a  half 
before  the  date  to  which  the  trial  of  a  cause  was  continued,  the 
overruling  of  the  motion  because  not  filed  in  time  was  an  erroneous 
exercise  of  the  court's  discretion.7  Where  the  defendant  was  not 
cited  before  the  venue  was  changed,  but  was  afterwards  cited  in 
the  court  to  which  the  venue  was  changed,  and  pleaded  his  priv- 
ilege in  abatement,  it  was  held  that  the  plea  was  good.8  It  is  no 

1  Wood  v.  Lenox,  5  Civ.  App.  318  <23  S.  W.  Rep.  812). 

2  R.  &  1275. 

'Ponton  v.  Bellows,  13  T.  254 
4  Dangerfield  v.  Paschal,  20  T.  537. 
8  Frosh  v.  Holmes,  8  T.  29. 
6Gillespie  v.  Redmond,  13  T.  9. 

•  Ellis  v.  Stearns,  27  S.  W.  Rep.  222. 

*  Martin  v.  White.  20  T.  174. 


16.] 

objection  t«>  h.Mrinsr  an  application  that  the  parties  ha-1  announced 
themselves  rea«ly  for  trial,  and  had  made  some  progress  in  the  se- 
>n  of  a  jury,  the  impanelment  of  which  could  not  be  completed 
for  want  of  the  requisite  number  of  jurors,  in  consequence  of  which 
no  trial  could  then  be  had.1 

i  346.  Matters  of  practice. 

An  order  for  a  change  of  venue  is  not  such  a  final  judgment  as 
will  authorize  an  appeal*  So  also  as  to  an  order  remanding  a  v 
on  the  ground  that  a  change  of  venue  was  not  authorized.1  Objec- 
tions to  a  change  will  not  be  heard  for  the  first  time  on  appeal.1 
And  irregularities,  such  as  ordering  a  change  before  defendant  is 
cited,  or  the  making  of  an  entry  nunc  pro  tune  of  an  order  made 
before  the  change  was  ordered,  will  be  cured  by  an  appearance  and 
plea  to  the  merit- 

Where  a  change  of  venue  was  ordered  on  the  application  of  one 
of  two  defendants,  and  the  case  was  subsequently  dismissed  as  to 
him,  it  was  held  that  the  jurisdiction  attached  as  to  the  remaining 
defendant;  or  if  not,  he  was  bound  to  a  prompt  and  timely  asser- 
tion of  his  privilege.* 

«  Salinas  v.  Stillman.  25  T.  12. 

»  Vance  v.  Hogne.  35  T.  432. 

J  Wygall  v.  State  Treasurer.  33  T.  333. 

«  Love  v.  Henderson,  42  T.  520. 
Irews  v.  Beck.  28  T.  455. 

•Bohannon  v.  Pearson,  2  App.  C.  C.  £  621:  Stafford  v.  Blum.  7  Civ.  App.  283 
(87  8.  W.  Rep.  121  All  the  defendants  in  a  consolidated  cause  must  join  in  a 
motion  for  a  change  of  venue,  unless  it  be  made  to  appear  that  those  who  apply 
are  the  only  real  defendants.  Mills  v.  Paul,  30  &  W.  Rep.  553. 


CHAPTER  XVI. 


SECURITY  FOR  COSTS. 


347.  Clerk  may  require  security. 

848.  Defendant  or  any  officer  may  re- 
quire security. 

349.  Judgment  on  cost  bond. 

850.  Affidavit  of  inability  to  give  se- 
curity. 

351.  Security  not  required,  when. 


852.  Intervener  and  defendant  may 
be  required  to  give  security. 

353.  Costs  secured  by  other  bonds. 

354.  Matters  of  practice. 

355.  Suit  may  be  dismissed  for  non- 

compliance  with  rule  for  costs. 


§  347.  Clerk  may  require  security. 

The  clerk  may  require  from  the  plaintiff  in  a  suit  security  for 
costs  before  issuing  any  process  therein,  but  he  must  file  the  peti- 
tion and  enter  the  same  properly  on  the  docket.1 

In  proceedings  for  the  removal  of  county  and  certain  district  offi- 
cers, the  clerk,  on  the  order  for  citation  being  granted,  may  demand 
of  the  relator  security  for  costs  as  in  other  cases.2  A  next  friend 
may  be  required  to  give  security,  or  file  an  affidavit  in  lieu  thereof.3 

§  348.  Defendant  or  any  officer  may  require  security. 

The  plaintiff  in  any  civil  suit  may,  at  any  time  before  final  judg- 
ment, upon  motion  of  the  defendant  or  any  officer  of  the  court  in- 
terested in  the  costs  accruing  in  such  suit,  be  ruled  to  give  security 
for  the  costs ;  and  if  such  rule  be  entered  against  the  plaintiff  and 
he  fail  to  comply  therewith  on  or  before  the  first  day  of  the  next 
term  of  the  court,  the  suit  will  be  dismissed.4 

The  statute  contemplates  that  a  motion  for  security  for  costs  may 
be  made  and  the  rule  granted  "at  any  time  before  final  judgment." 
It  was  error  to  refuse  a  motion  for  the  reason  that  it  came  too  late, 
when  made  after  the  plaintiff  had  announced  ready  for  trial.  But 
where  verdict  and  judgment  were  for  the  plaintiff  the  error  was 
immaterial,  no  injury  appearing  from  the  ruling.5  Appellee,  plaint- 
iff in  the  justice's  court,  cannot  be  required  to  give  security  on  ap- 
peal to  the  county  court,  on  motion  of  appellant.0  The  same  ruling 
is  made  where  the  case  is  removed  by  certiorari? 

1  R.  S.  1439. 

2  R.  S.  3553. 

3  Acts  1893,  p.  3;  R  S.  3498tt. 
«R.S.  1440. 

» L  &  G.  N.  Ry.  Co.  v.  Williams,  82  T.  342  (18  8.  W.  Rep,  700). 

6  Tex.  &  Pac.  Ry.  Co.  v.  Cook.  2  App.  C.  C.,  §  659,  overruling  Tex.  &  Pac.  Ry. 
Co.  v.  Taylor,  2  App.  C.  C.,  §  418;  Pierce  v.  Pierce,  21  T,  469, 

7  Foreman  v.  Gregory,  17  T,  193. 


.">0.]  SECURITY    FOE   COSTS.  353 

f49.  Judgment  on  cost  bond. 

All  l)i. nds  given  as  security  for  costs  shall  authorize  judgment 
itirninst  all  the  obligors  for  the  costs,  to  be  entered  in  the  final  judg- 
ment of  the  cause.1  The  statute  does  not  expressly  require  a  bond, 
but  only  that  security  be  given;  and  it  is  held  that  a  deposit  with 
the  clerk  of  an  amount  of  money  satisfactory  to  him,  or  sufficient 
to  cover  the  costs  of  the  suit,  is  a  sufficient  compliance  with  the 
rule  to  furnish  security.2  Where  the  bond  given  is  defective,  a  new 
l»ond  mav  be  given.3 

• 

Article  1501,  Paschal's  Digest,  read:  "All  bonds  given  as  security 
for  costs  shall  have  the  force  and  effect  of  judgments  against  all 
obligors  for  the  said  costs;"  and  it  was  held  not  necessary,  even  if 
permissible,  to  enter  judgment  against  the  sureties  for  the  costs  ad- 
judged against  plaintiff.4 

?  350.  Affidavit  of  inability  to  give  security. 

A  party  who  is  required  to  give  security  for  costs  may  file  with 
the  clerk  an  affidavit  that  he  is  too  poor  to  pay  the  costs  of  court, 
and  is  unable  to  give  security  therefor,  and  it  then  becomes  the 
duty  of  the  clerk  to  issue  process  and  to  perform  all  other  services 
required  of  him  in  the  same  manner  as  if  the  security  had  been 
given.  The  clerk  has  the  right  to  contest,  by  proof  or  otherwise, 
the  inability  of  the  party  to  pay  costs,  or  his  inability  to  give  secu- 
rity for  the  same,  such  contest  to  be  tried  by  the  judge  at  the  next 
term  after  the  filing  of  the  contest.5  It  is  held  that  the  necessary 
parties  plaintiff  to  the  suit  must  make  the  affidavit  under  this  arti- 
cle; and  in  a  suit  by  a  married  woman  in  which  she  is  properly 
joined  by  her  husband,  the  affidavit  must  be  made  by  the  husband.6 

The  affidavit  supplies  the  place  of  a  cost   bond;7  it  performs 

1  R  S.  1441. 

2  Henderson  v.  Riley,  1  App.  C.  C.,  §  48a    Plaintiff  stated  in  his  affidavit  that 
he  was  unable  to  give  security  for  or  to  make  a  deposit  of  a  sufficient  amount 
of  money  to  pay  the  costs;  also  that  he  could  not  swear  that  he  was  unable  to 
l>;iy  the  costs  as  they  accrued;  that  he  had  paid  all  costs  that  had  been  incurred 
up  to  date,  except  a  small  balance,  and  that  to  cover  this  he  had  made  a  deposit 
with  the  clerk.    This  was  a  reasonable  and  substantial  compliance  with  the 
-tatute.    Long  v.  McCauley,  3  S.  W.  Rep.  689. 

»  Herndon  v.  Rice,  21  T. 

<  Cravens  v.  Wilson,  48  T.  321. 

5  R  S.  1442.    When  the  proper  affidavit  is  filed,  the  clerk  on  issuing  process 
niu^t  indorse  thereon  the  words  "  pauper  oath  filed,"  and  sign  his  name  offi- 
cially below  them,  and  the  officer  in  whose  hands  the  process  is  placed  must 
serve  it  the  same  as  in  other  cases.    R  S.  1421. 

6  Crockett  v.  Maxey,  4  App.  C.  C.,  §  292.    The  affidavit  may  be  made  by  the 
plaintiff  or  by  his  attorney.    Hickey  v.  Rhine,  16  T.  576;  Brooks  v.  Hicks,  20  T. 
666.    It  may  be  written  by  the  attorney,  and  sworn  to  by  the  client  before  him, 
he  being  a  notary  public.     Ryburn  v.  Moore,  72  T.  85  (10  S.  W.  Rep.  393). 

"  Mo.  Pac.  Ry.  Co.  v.  Richmond,  73  T.  568  (11  S.  W.  Rep.  555). 
23 


354:  SECURITY    FOR   COSTS.  [§§  351-354v 

all  the  functions  of  a  bond  in  keeping  a  case  in  court ;  if  defective 
in  form  and  substance,  that  defect  should  be  pointed  out  in  a  motion 
made  to  dismiss  the  cause  for  insufficiency  in  the  affidavit.1  The 
statute  permits  the  plaintiff  to  prosecute  his  suit  without  giving  se- 
curity, but  does  not  release  him  from  liability  for  his  own  costs,  or 
for  all  the  costs  if  judgment  goes  against  him.2 

The  clerk  is  the  only  party  in  a  court  of  record  entitled  to  con- 
test an  affidavit  of  inability  to  give  security  for  costs,  and  if  he: 
refuses  to  join,  the  contest  is  properly  stricken  out.3 

§  351.  Security  not  required,  when. 

Executors,  administrators  and  guardians  appointed  by  the  courts 
of  this  state  are  not  required  to  give  security  for  costs  in  any  suit 
brought  by  them  in  their  fiduciary  capacity.4  The  state  is  not  re- 
quired to  give  security  in  any  case.5 

§  352.  Intervener  and  defendant  may  be  required  to  give  security. 

The  provisions  relating  to  security  for  costs  by  the  plaintiff  apply 
to  an  intervener,  and  to  a  defendant  who  seeks  a  judgment  against 
the  plaintiff  on  a  counter-claim  after  the  plaintiff  shall  have  dis- 
continued his  suit  under  the  statute  relating  to  discontinuance.6 
"Where  defendant  files  a  counter-claim,  asking  affirmative  relief,  a 
discontinuance  by  the  plaintiff  will  not  prejudice  his  right  to  be- 
heard  on  such  claim.7 

The  statute  does  not  require  a  defendant  to  give  a  cost  bond  in 
case  he  should  reconvene  for  damages  in  a  suit  against  him.  In 
the  absence  of  a  statute  giving  the  right  to  require  such  a  bond,  the 
court  would  not  have  authority  to  require  it.8 

§353.  Costs  secured  by  other  bonds. 

When  the  costs  are  secured  by  the  provisions  of  an  attachment 
or  other  bond  filed  by  the  party  required  to  give  security  for  costs, 
no  further  security  is  required.9 

§354.  Matters  of  practice. 

In  order  to  obtain  a  rule  for  security,  a  motion  should  be  made 
and  entered  in  the  motion  docket;  and  when  the  order  is  made,  the 

1  Hubby  v.  Harris,  63  T.  456.    An  affidavit  which,  in  describing  the  cause,  gave 
the  proper  name  of  the  plaintiff  and  the  proper  name  of  one  of  the  defendants, 
omitting  the  name  of  another  defendant,  was  sufficient,  being  regular  in  other 
respects. 

2  McPherson  v.  Johnson,  69  T.  484  (6  S.  W.  Rep.  798). 

3  Weatherf ord  v.  Duncan,  31  S.  W.  Rep.  562. 
«R.S.  1443. 

8R  S.  1444. 
8R.S.  1445. 

7  R.  S.  1260. 

8  Yarborough  v.  Weaver,  6  Civ.  App.  215  (25  S.  W.  Rep.  468). 
»R.S.  1446. 


§  355.]  8ECUKITY  FOB  COSTS.  355 

rule  should  be  expressed  in  distinct  and  appropriate  terms,  and  en- 
tered in  the  minutes  of  the  court.  The  entry  of  "rule  for  costs" 
on  the  judge's  docket  is  not  a  sufficient  foundation  to  support  a  judg- 
ment of  dismissal.1  It  seems  that  if  the  security  furnished  is  found 
to  be  insufficient,  or  otherwise  objectionable,  additional  security 
may  be  called  for,  on  due  notice  to  the  party.2  It  is  error  to  dis- 
miss for  failure  to  give  security  where  no  rule  has  been  entered 
requiring  security.3 

§  355.  Suit  maybe  dismissed  for  non-compliance  with  rule  for  costs. 

W  here  the  plaintiff  has  been  required  to  give  security  for  costs, 
the  suit  will  be  dismissed  if  he  fails  to  comply  with  the  rule  on 
or  before  the  first  day  of  the  next  term.4  The  plaintiff  must  have 
had  actual  notice  of  the  rule  for  security  for  costs,  and  he  is  not 
bound  to  take  notice  of  a  motion  filed  in  the  papers  of  the  cause.5 
Security  can  be  given  at  any  time  before  the  case  has  been  actually 
dismissed.6 

An  application  to  reinstate  the  case,  on  a  reasonable  showing- 
why  the  rule  was  not  complied  with,  ought  to  be  granted.7  But 
the  matter  is  within  the  discretion  of  the  court.8  It  is  not  error 
for  which,  on  appeal,  a  reversal  may  be  had,  to  refuse  to  postpone 
a  case  when  reached  for  the  purpose  of  enabling  the  plaintiff  to 
comply  with  the  rule,  or  to  overrule  a  motion  to  reinstate  after  the 
order  of  dismissal.9 

1  Shackleford  v.  Wallace,  4  T.  239. 

2Holshausen  v.  Hollingsworth,  32  T.  86;  Houston  v.  Roberts,  10  T.  348. 

s  Marks  v.  Fields,  29  S.  W.  Rep.  664. 

<R.S.  1440. 

8  Houston  v.  Sublett,  1  T.  523;  Holshausen  v.  Hollingsworth,  32  T.  86. 

6  Hays  v.  Cage,  2  T.  501;  Cook  v.  Beasley,  1  T.  591;  Rhodes  v.  Phillips,  2  T.  162; 
Cook  v.  Ross,  46  T.  263;  Mo.  Pac.  Ry.  Co.  v.  Richmond,  73  T.  568  (11  S.  W.  Rep. 
606). 

7  Union  Bank  of  Mississippi  v.  Hudgeons,  3  T.  9. 

8  Hays  v.  Cage,  2  T.  501. 
»Cook  v.  Ross,  46  T.  263. 


CHAPTER  XVII. 


CONSOLIDATION  OF  SUITS  AND  JOINDER  OF  CAUSES  OF  ACTION. 


356.  Discretion  of  court. 

357.  When  consolidation  of  suits  is 

proper. 

358.  Costs    of    several    suits    which 

should  have  been  joined. 

359.  Joinder  of  causes  of  action  gen- 

erally. 

360.  General  principles  as  to  joinder 

of  causes. 

361.  Illustrations  of  the  various  rul- 

ings. 


§  362.  Chancery  and  common-law  rules. 
363.  Real  actions. 
364  Tort  actions. 

365.  Joinder  of  causes  ex  delicto  and 

ex  contractu. 

366.  Whether  parties  must  all  be  in- 

terested  or   affected   in   the 
same  way. 

367.  Effect  of  non-joinder. 


§  356.  Discretion  of  court. 

Whenever  several  suits  may  be  pending  in  the  same  court,  by  the 
same  plaintiff  against  the  same  defendant,  for  causes  of  action 
which  may  be  joined,  or  where  several  suits  are  pending  in  the  same 
court  by  the  same  plaintiff  against  several  defendants,  which  may 
be  joined,  the  court  in  which  the  same  are  pending  may,  in  its  dis- 
cretion, order  such  suits  to  be  consolidated.1 

The  consolidation  of  suits  is  largely  within  the  discretion  of  the 
court,  and  the  question  whether  the  consolidation  will  work  a  mis- 
joinder  will  not  be  examined  on  appeal  unless  there  appears  to  have 
been  an  abuse  of  the  discretion.2  If  the  refusal  of  the  court  to  con- 
solidate causes  is  reversible  at  all,  it  is  only  in  cases  in  which  an 
abuse  of  discretion  is  manifest.3 

It  is  reversible  error  for  the  court  to  set  aside  a  consolidation 
which  has  been  properly  made,  if  the  ruling  of  the  court  works  a 
manifest  injury  to  one  of  the  parties.4  Where  two  suits  are  pending 
in  the  county  court  for  sums  alleged  to  be  due  under  a  contract  of 
employment,  they  cannot  be  consolidated  on  motion  of  defendant 
if  by  the  consolidation  the  amount  in  controversy  will  exceed  the 
sum  over  which  a  county  court  has  jurisdiction.5 

1  R.  S.  1454 

2  Morris  v.  Wood,  1  App.  C.  C.,  §  811;  Harle  v.  Langdon,  60  T.  555. 

3  Tex.  &  Pac.  Ry.  Co.  v.  Hays,  2  App.  C.  C.,  §  390. 

4  Ay  cock  v.  Doty,  1  App.  C.  C.,  §222:  Young  v.  Gray,  65  T.  99. 

»  Mohrhardt  v.  S.  P.  &  T.  N.  Ry.  Co..  2  App.  C.  C.,  §  323;  Tex:  &  Pac.  Ry.  Co.  v. 
Hays,  2  App.  C.  C.,  §  390.  Parties  asking  for  an  order  of  consolidation  will  not 
be  heard  to  complain  of  the  action  of  the  court;  nor  will  other  parties  be  heard 
who  make  no  objection.  Mills  v.  Paul,  30  S.  W.  Rep.  242. 


§  357.]  CONSOLIDATION    OF    SUITS,  ETC.  357 

£  367.  When  consolidation  of  suits  is  proper. 

To  justify  a  consolidation,  the  suits  must  be  between  the  same 
parties,  the  causes  of  action  must  be  the  same,  and  the  subjects 
must  be  such  as  could  be  joined.1  In  two  suits,  where  the  rights 
and  privity  of  the  plaintiff  in  one  are  the  same  as  those  of  the  de- 
fendant in  another,  the  subject-matter  being  the  same,  and  no  prej- 
udice to  the  right  of  any  person  is  shown,  the  consolidation  of  the 
two  causes,  though  technically  irregular,  would  not  be  a  sufficient 
ground  for  a  reversal  of  the  cause.2 

When  suits  are  brought  by  the  same  plaintiffs  against  the  same 
principal  defendant  on  separate  obligations  to  secure  the  faithful 
performance  of  official  duties  by  the  principal  defendant,  and  there 
are  different  sureties  on  the  several  bonds  which  were  given  for  dif- 
ferent terms  of  official  service,  and  who  are  defendants  in  the  suits 
brought  on  their  respective  bonds,  the  suits  cannot  be  consolidated 
though  the  plaintiff  may  be  unable  to  state  under  which  term  of 
official  service  a  misappropriation  of  funds  by  the  principal  defend- 
ant occurred.3 

One  claiming  to  be  the  owner  of  certain  bank  stock  sued  the  bank 
to  compel  a  transfer  of  the  stock  to  him,  and  joined  as  a  defendant 
a  third  person  who  claimed  the  stock.  The  third  party  filed  a  cross- 
bill against  the  bank,  and  afterwards  'instituted  a  separate  action 
against  the  bank  for  relief  in  respect  to  the  stock,  and  it  was  held 
that  the  consolidation  of  the  two  actions  was  no  cause  for  complaint 
on  the  part  of  the  third  party.4 

1  Raymond  v.  Cook,  31  T.  373. 

2  Harle  v.  Langdon,  60  T.  555. 

3  Screwmen's  Benev.  Ass'n  v.  Smith,  70  T.  168  (7  S.  W.  Rep.  793).    It  was  not  error 
to  refuse  to  consolidate  an  action  for  damages  for  refusal  to  carry  lumber  with 
one  brought  for  damages  for  refusal  to  carry  cross-ties.    Tex.  &  Pac.  Ry.  Co.  v. 
Hays,  2  App.  C.  C.,  §  390.    The  consolidation  of  an  action  of  forcibly  entry  and 
detainer  with  an  action  of  trespass  to  try  title  is  not  permissible.    Texas-Mexi- 
can Ry.  Co.  v.  Cahill,  23  S.  W.  Rep.  232. 

Two  actions  on  two  separate  claims  by  the  same  plaintiff,  both  claims  being 
secured  by  mortgage  on  the  same  property,  may  be  consolidated,  though  a  per- 
son other  than  the  principal  defendant  is  personally  liable  on  one  of  the  claims. 
Johnston  v.  Luling  Mfg.  Co.,  24  S.  W.  Rep.  996.  An  action  was  brought  by  A.  to 
determine  the  right  to  property  attached  by  a  certain  bank  in  an  action  against 
B.,  and  it  was  held  that  it  was  in  the  discretion  of  the  trial  court  to  grant  or  re- 
fuse a  consolidation  of  this  case  with  another  in  regard  to  the  same  property  in 
which  another  bank  was  plaintiff  and  A.  a  defendant  as  claimant  of  the  prop- 
erty. Davis  v.  Dallas  Nat.  Bank,  7  Civ.  App.  41  (26  S.  W.  Rep.  22'2). 

Defendant  A.  and  his  sureties  on  a  sequestration  bond  were  sued  for  wrong- 
ful sequestration  of  plaintiff's  property  which  they  had  bought  in  at  the  seques- 
tration sale,  and  it  was  held  that  they  could  not  require  the  consolidation  of  this 
action  with  two  other  separate  suits  in  which  other  persons  had  asserted  liens 
on  this  property  and  to  which  A.  was  contesting  the  title  under  claim.  Dreben 
v.  Russeau,  26  S.  W.  Rep.  867. 

Causes  for  the  trial  of  the  right  of  property  levied  upon  by  executions  in  favor 
of  different  plaintiffs  should  not  bo  consolidated.  Green  v.  Banks,  24  T.  508. 

4  Spencer  v.  James,  31  S.  W.  Rep.  540. 


358  CONSOLIDATION   OF   SUITS,  ETC.  [§§  358,  359. 

§  358.  Costs  of  several  suits  which,  should  have  been  joined. 

"Where  a  plaintiff  brings  in  the  same  court  several  suits  against 
the  same  defendant  for  causes  of  action  which  should  have  been 
joined,  he  may  recover  the  costs  of  but  one  action,  and  the  costs  of 
the  other  actions  will  be  adjudged  against  him,  unless  sufficient  rea- 
sons appear  to  the  court  for  instituting  several  actions.1  A  motion 
against  a  county  attorney  to  compel  him  to  pay  into  the  state  treas- 
ury money  which  he  had  collected  by  suit  against  a  defaulting  tax 
collector  is  practically  a  suit  against  him  by  the  state,  and  where 
seven  such  motions  were  made,  in  seven  different  cases,  it  was  not 
error  to  consolidate  them ;  nor  was  it  error  to  refuse  the  costs  of 
more  than  one  motion.2 

§  359.  Joinder  of  causes  of  action  generally. 

There  are  in  this  state  no  prescribed  rules  or  regulations  for  the 
joinder  of  causes  of  action,  and  where  no  precedents  are  found  in 
the  decisions  of  the  courts,  the  pleader  must  refer  to  the  rules  of 
the  common  law,  and  of  the  so-called  code  states,  so  far  as  he  may 
deem  them  applicable.  While  a  resort  to  common-law  rules  might, 
in  most  cases,  be  deemed  of  doubtful  propriety,  notwithstanding 
the  qualified  adoption  of  the  common  law,  it  would  seem  that  the 
rules  prescribed  by  the  codes  adopted  by  some  of  the  states,  and 
the  decisions  thereunder,  ought  to  be  held,  if  not  authoritative,  at 
least  persuasive  in  most  cases.  The  provisions  of  the  New  York 
code  are  as  follows,  and  have  been  adopted  with  very  little  change 
by  the  other  code  states : 

1.  All  distinctions  between  actions  at  law  and  suits  in  equity,  and 
the  forms  of  all  such  actions  and  suits  heretofore  existing,  are  abol- 
ished ;  and  there  shall  be  but  one  form  of  action  for  the  enforce- 
ment or  protection  of  private  rights,  or  redress  or  prevention  of 
private  wrongs,  which  is  denominated  a  civil  action. 

2.  The  plaintiff  may  unite  in  the  same  petition  or  complaint  sev- 
eral causes  of  action,  whether  they  be  such  as  have  heretofore  been 
denominated  legal  or  equitable,  or  both,  when  they  arise  out  of : 

(1)  The  same  transaction,  or  transactions  connected  with  the  same 
subject  of  action. 

(2)  Contracts,  express  or  implied. 

(3)  Injuries,  with  or  without  force,  to  person  and  property,  or 
either. 

(4)  Injuries  to  character. 

(5)  Claims  to  recover  real  property,  with  or  without  damages  for 
the  withholding  thereof,  and  the  rents  and  profits  of  the  same. 

1  R.  S.  1431;  Wooldridge  v.  Womack,  1  App.  C.  C.,  §  339;  H.  &  T.  C.  Ry.  Co.  v. 
Perkins,  2  App.  C.  C.,  §  522. 

2  State  v.  Moore,  57  T.  307. 


§  360.]  -OLJDATION    OF    SUITS,  ETC.  359 

(6)  Claims  to  recover  personal  property,  with  or  without  damages 
•he  withholding  thereof. 

(7)  Claims  against  a  trustee,  by  virtue  of  a  contract,  or  by  opera- 
<>f  la\v. 

But  the  causes  of  action  so  united  must  all  belong  to  one  of  these 
;ul  must  affect  all  the  parties  to  the  action,  and  not  require 
different  places  of  trial,  and  must  be  separately  stated. 

In  this  state  the  plaintiff  states  the  facts  constituting  his  cause 
of  action,  and  relief  is  administered  without  reference  to  any  dis- 
tinction between  actions  at  law  and  suits  in  equity.1 

Xo  general  rules  or  tixed  principles  have  been  stated  by  the  courts 
of  this  state;  at  least  none  of  any  value  as  guides  in  the  absence  of 
established  precedents.  The  rule  against  multiplicity  of  suits  is  said 
to  be,  within  reasonable  limits,  the  cardinal  principle  as  to  the  joinder 
of  parties  and  causes  of  action;  but  it  is  said  that  each  case  must 
be  governed  by  its  own  circumstances,  and  whether  it  be  multifari- 
ous or  not  must  be  left  in  a  great  measure  to  the  sound  discretion 
of  the  court.- 

?'  360.  General  principles  as  to  joinder  of  causes  of  action. 

The  splitting  of  causes  of  action  and  the  multiplication  of  suits 
a  iv  discountenanced  in  this  state,  and  parties  are  required  to  settle 
their  controversies  in  a  single  suit,  if  practicable.3  Multifariousness 
in  a  petition  is  very  seldom  a  ground  of  exception.4  The  same 
.strictness  of  pleading  in  regard  to  joinder  of  parties  and  causes  of 
action  does  not  prevail  in  Texas  as  is  observed  in  states  where  the 
distinction  between  law  and  equity  forms  of  action  is  recognized. 
A  petition  may  embrace  so  many  distinct  and  separate  demands  as 
to  be  objectionable  on  the  ground  of  multifariousness,  but  the  ob- 
jection of  multifariousness  is  not  favored ;  it  is  entitled  to  no  lib- 
erality of  construction.9  Each  case  must  be  governed  by  its  own 
circumstances,  and  the  matter  is  left  in  great  measure  to  the  sound 
discretion  of  the  court.  The  rules  of  chancery  practice  will  be  re- 
garded only  when  they  may  be  deemed  reasonable,  and  harmonize 

i  R.  S.  1183.  1191.    See  R.  a  1098,  1106,  1162;  Const,  art  V,  §  8. 

2Clegg  v.  Varnell,  18  T.  294. 

3 1.  &  G.  N.  Ry.  Co.  v.  Donalson,  2  App.  C.  C.,  §  238;  Pitts  v.  Ennis,  1  T.  604; 
Francis  v.  Northcote,  6  T.  185;  Smith  v.  Power,  2  T.  57:  Blair  v.  Gay,  33  T.  r>7. 
Haggerty  v.  Scott,  10  T.  535;  Ponton  v.  Bellows,  22  T.  681;  Henderson  v.  Morrill, 
12  T.  3. 

*  H.  &  T.  C.  Ry.  Co.  v.  Stewart  1  App.  C.  C.,  §  1264 

5Craddock  v.  Goodwin.  ">4  T.  578.  In  this  case  there  were  joined  in  the  same 
petition  two  separate  counts  for  malicious  attachment,  with  a  count  for  dam- 
ages for  seizing  property  belonging  to  the  husband  and  one  for  seizing  property 
belonging  to  the  wife  — husband  and  wife  being  joined  as  plaintiffs  It  was 
held  that  an  exception  for  misjoinder  of  parties  and  causes  of  action  was  not 
well  taken.  And  see  Dobbin  v.  Bryan,  5  T.  276. 


360  CONSOLIDATION   OF   SUITS,  ETC.  [§  361. 

with  our  system  of  practice.1  A  petition  is  not  objectionable  if  it 
confines  itself  to  an  adjustment  of  all  the  equities  between  the  par- 
ties, however  various  those  equities  may  be  in  their  origin.2  An 
objection  which  would  be  well  taken  under  a  system  where  there 
are  forms  of  action  should  not  prevail  in  this  state,  where  the  mat- 
ters relied  on  are  connected  with  or  grow  out  of  the  same  cause  of 
action,  or  transaction,  and  subject-matter  in  dispute ;  particularly 
should  this  be  the  case  where  the'  parties  and  the  evidence  are  the 
same.3 

It  would  be  allowed  to  join  in  one  suit  allegations  to  reform  an 
instrument  to  supply  a  defect  for  mutual  mistake,  with  foreclosure 
of  the  instrument  as  corrected.  In  such  proceedings  subsequent 
purchasers  are  necessary  parties.4  It  was  proper  to  entertain  a 
proceeding1  for  ttye  purpose  of  reviving  former  judgments  between 
the  same  parties,  and  at  the  same  time  to  enforce  payment  through 
mandamus?  That  an  imperfectly  stated  cause  of  action  is  joined 
with  one  properly  set  out  is  no  ground  for  demurrer  to  the  cause  of 
action  well  pleaded.6 

§  361.  Illustrations  of  the  various  rulings. 

The  policy  of  the  courts  seems  to  be  to  permit  and  encourage 
the  joinder  of  causes  of  action,  within  proper  limits,  but  not  to  re- 
quire it.  Thus,  it  is  held  that  where  wages  are  due  monthly,  the 
party  may  bring  separate  suits  for  several  months'  wages  due.7 
Again :  Four  bales  of  cotton  were  delivered  to  a  railway  company 
for  shipment.  Two  of  them  were  destroyed  by  fire  and  the  other 
two  were  shipped  to  the  agent  of  the  railway  company.  Suit  was 
first  brought  for  the  loss,  and  afterwards  for  a  conversion  of  the 
other  two  bales;  and  on  a  motion  to  tax  costs  it  was  held  that  the 
law  did  not  require  the  joinder  of  the  two  causes  of  action.8  It 
is  held  proper  to  embrace  in  one  action  against  the  same  defendant 
claims  for  overcharge  of  freight  on  goods  shipped,  excess  of  freight 
charges  paid  on  goods  shipped  but  not  delivered,  and  loss  of  and 
damage  to  goods  shipped.9  The  fact  that  numerous  issues  are  pre- 
sented in  a  petition  against  a  number  of  parties  defendant,  who  are 
charged  to  have  rendered  themselves  liable  successively  for  the  pay- 
ment of  a  debt,  the  collection  of  which  is  the  only  object  of  the  suitr 

1  Clegg  v.  Varnell,  18  T.  294. 

2  Dobbin  v.  Bryan,  5  T.  276. 

3H.  &  T.  C.  Ry.  Co.  v.  Graves,  50  T.  181;  Walcott  v.  Hendrick,  6  T.  415. 
*  Clark  v.  Gregory,  87  T.  189  (27  S.  W.  Rep.  56). 
6  City  of  Houston  v.  Emery,  76  T.  282  (13  S.  W.  Rep.  264). 
6  Ward's  Heirs  v.  Ward,  1  U.  C.  123. 
^Mohrhardt  v.  S.  P.  &  T.  N.  Ry.  Co.,  2  App.  C.  C.,  §  322. 
8H.  &  T.  C.  Ry.  Co.  v.  Perkins,  2  App.  C.  C.,  §  522. 

9 1.  &  G.  N.  Ry.  Co.  v.  Donalson,  2  App.  C.  C.,  §  238;  H.  &  T.  C.  Ry.  Co.  v.  Stewart,. 
1  App.  C.  C.,  §  1264. 


§§  362, 363.]  CONSOLIDATION  OF  SUITS,  Era  361 

will  not  render  the  petition  bad  for  multifariousness.1  In  a  suit 
against  a  dissolved  corporation  to  enforce  an  equitable  lien,  it  was 
held  proper  to  join  a  suit  to  enforce  a  mortgage  upon  other  prop- 
erty, without  alleging  that  the  mortgaged  property  was  insufficient 
to  satisfy  the  claim.2 

§  362.  Chancery  and  common-law  rules. 

I' ruler  the  chancery  rules,  it  is  said,  a  plaintiff  will  not  be  per- 
mitted to  demand  by  one  bill  several  matters  of  different  natures 
against  several  defendants;  but  where  the  object  of  the  bill  is  to 
establish  a  general  right  in  the  plaintiff  against  several  persons  un- 
connected and  claiming  several  and  distinct  rights  in  the  subject- 
matter  of  the  suit,  the  bill  is  not  multifarious.3  A  prominent 
feature  of  the  Texas  system  of  procedure  is  that  litigation  between 
parties  should  be  terminated  in  a  single  suit ;  *  and  it  is  held  that 
great  latitude,  not  tending  to  manifest  confusion,  may  be  allowed 
in  the  joinder  of  causes  of  action.5  According  to  the  rule  of  the 
common  law,  where  plaintiff  may  comprise  both  his  causes  of  action 
in  one  suit,  he  will  not  be  permitted  to  maintain  two  suits  at  the 
same  time,  but  will  be  compelled  to  consolidate  and  pay  costs.  The 
civil  law  also  requires  that  all  demands  not  inconsistent  with  each 
other  must  be  joined."  But  although  our  system  authorizes  the  blend- 
ing of  the  principles  of  law  and  of  equity  in  the  administration  of 
justice,  it  neither  requires  nor  sanctions  the  blending  of  various  and 
contradictory  rights  and  causes  of  action  in  the  same  suit.7  A 
plaintiff  cannot  join  in  the  same  action  a  note  payable  to  him  in 
his  individual  capacity,  with  one  payable  to  him  in  a  fiduciary 
capacity.8 

§  363.  Heal  actions. 

Where  plaintiffs  in  an  action  of  trespass  to  try  title  and  for  par- 
tition join  several  tracts  of  land,  and  the  issues  as  to  all  the  tracts 
are  the  same  as  to  all  the  parties,  the  petition  is  not  subject  to  ex- 
ception as  multifarious  or  for  misjoinder  of  causes  of  action.9  A 
joint  action  by  several  claiming  separate  and  distinct  portions  of  a 
league  of  land,  brought  to  recover  their  respective  parts,  is  irregu- 
lar, and  an  objection  to  such  joint  action,  if  made  at  a  proper  time 
and  in  a  proper  manner,  should  be  sustained ;  but  the  objection  can- 

1  Nat.  Bank  of  Jefferson  v.  Texas  Inv.  Co.,  74  T.  421  (12  S.  W.  Rep.  101). 

2  Panhandle  Nat  Bank  v.  Emery,  78  T.  498  (15  S.  W.  Rep.  23). 
'Morris  v.  Ashley,  Dallam,  619. 

4Clegg  v.  Varnell,  18  T.  294 
8  Chevalier  v.  Rusk,  Dallam,  511. 

6  Binge  v.  Smith.  Dallam,  616:  Chevalier  v.  Rusk,  Dallam,  511. 
"  Herrington  v.  Williams,  31  T.  448,  460;  Frost  v.  Frost,  45  T.  325;  Thomas  v, 
Walsh,  44  T.  161. 

8  Thompson  v.  Bohannan,  38  T.  241. 
»  Yellow  Pine  Lumber  Co.  v.  Carroll,  76  T.  135  (13  S.  W.  Rep.  261). 


362  CONSOLIDATION   OF   SUITS,  ETC.  [§§  364,  365. 

not,  for  the  first  time,  be  made  in  the  appellate  court,  and  a  defend- 
ant ought  not  to  be  heard  to  urge  it  at  all  after  having  acquiesced 
so  long  in  the  particular  mode  of  procedure  as  that  to  entertain  the 
objection  would  operate  to  the  prejudice  of  the  plaintiffs  and  secure 
to  the  defendant  advantages  which  he  would  not  have  had  if  he  had 
urged  the  objection  when  the  action  was  first  brought.1 

A  suit  for  possession  may  be  joined  with  one  for  rent  of  the  prop- 
erty.2 

§  364.  Tort  actions. 

Distinct  causes  of  action,  such  as  trespass  upon  lands  and  con- 
version of  goods,  may  be  joined.3  A  cause  of  action  for  libel  and 
one  for  slander  may  be  joined  in  the  same  suit  if  each  count  is  com- 
plete in  itself  and  relates  to  the  same  matter.4  It  is  not  a  mis- 
joinder  of  parties  or  of  causes  of  action  to  join  in  an  action  a  party 
who  by  fraudulent  and  false  representations  as  to  his  solvency  had 
purchased  goods  of  plaintiff  on  credit,  with  one  to  whom  he  had  in 
furtherance  of  his  fraudulent  design  conveyed  the  goods  in  trust, 
it  being  alleged  that  part  of  the  goods  are  in  possession  of  said 
trustee,  with  prayer  for  such  goods  or  their  value  against  the 
trustee,  and  a  further  prayer  against  the  principal  for  the  balance 
due.5 

§  365.  Joinder  of  causes  ex  delicto  and  ex  contracts. 

The  general  rule  is,  that  a  cause  of  action  ex  delicto  and  a  cause 
of  action  ex  contractu  cannot  be  joined  in  the  same  suit,  and  if, 
under  the  liberal  course  of  procedure  adopted  in  this  state,  such 
•causes  of  action  can  be  joined  at  all,  they  must  be  such  as  the  plaint- 
iff in  the  suit  could  enforce  against  all  of  the  defendants.6  But  it 
is  said  that  the  right  to  sue  for  a  breach  of  a  contract  and  for  a 
tort,  when  both  grow  out  of  the  same  transaction  and  can  be  prop- 
•erly  litigated  together,  is  recognized  by  the  courts  of  Texas.7 

1  Allen  v.  Read,  66  T.  13  (17  S.  W.  Rep.  115). 

2  Lyles  v.  Murphy,  38  T.  75. 

3  Carter  v.  Wallace,  2  T.  206. 

4  Wallis  v.  Walker,  73  T.  8  (11  S.  W.  Rep.  123). 

8  Johnson  v.  Stratton,  6  Civ.  App.  431  (25  S.  W.  Rep.  683);  Milliken  v.  Callahan 
Co.,  69  T.  205  (6  S.  W.  Rep.  681).  A  surviving  husband,  there  being  minor  chil- 
dren of  the  marriage,  conveyed  in  trust  to  secure  his  own  debt  a  stock  of  cattle 
belonging  in  part  to  the  separate  estate  of  his  wife  and  in  part  community,  in 
fraud  of  the  administrator  of  the  wife  and  of  the  minor  children.  The  two 
causes  arising  from  the  same  act  may  be  joined.  Moody  v.  Smoot,  78  T.  119  (14 
S.  W.  Rep.  285). 

A  man  may  bring  separate  suits  for  damages  for  personal  injuries  to  himself 
And  to  his  wife,  or  he  may  join  the  two  claims  in  one  suit.  St.  Louis,  I.  M.  &  S. 
Ry.  Co.  v.  E.: wards,  3  App.  C.  C.,  §  346. 

6 Stewart  v.  Gordon,  65  T.  344,  citing  Stephen  on  PL  267;  Chitty  on  PI.  199; 
Pomeroy's  Remedial  Rights,  456,  479,  483. 

^  Hooks  v.  Fitzenrieter,  76  T.  277  (13  S.  W.  Rep.  230);  H.  &  T.  C.  Ry.  Co.  v.  Shir- 
ley, 54  T.  125,  148. 


CONSOLIDATION   OF    SOTS,  ETC.  363 

It  is  not  error  to  join  in  the  same  suit  claims  for  property  con- 
verted and  for  damages  proximately  resulting  from  a  breach  of 
contract,  when  the  matters  relied  on  for  a  recovery  are  connected 
with  and  grew  out  of  the  same  cause  of  action  and  subject-matter 
in  dispute;  in  such  an  action  it  is  proper  to  join  all  the  parties  as 
plaintiffs  or  defendants  who  have  so  participated  in  the  transaction 
as  to  render  them  interested  in  the  determination  of  the  suit.1 

?  366.  Whether  parties  must  all  be  interested  or  affected  in  the  same 
way. 

In  a  suit  on  a  guardian's  bond  a  joint  demand  for  conversion  in 
favor  of  all  the  plaintiffs  may  be  joined  with  a  separate  demand 
in  favor  of  one  of  them.2  Where  suit  is  brought  for  partition  of  an 
estate,  it  is  held  that  the  plaintiff  will  not  be  permitted  to  join  a  claim 
airainst  one  of  the  parties  interested  for  services  rendered,  with  a 
claim  for  the  value  of  property  of  the  plaintiff  converted.3  Where 
the  partners  in  two  firms  are  the  same,  they  may  join  causes  of  ac- 
tion in  favor  of  one  with  causes  of  action  in  favor  of  the  other  in 
one  action.4 

A  separate  agreement  of  one  joint  maker  of  a  note  to  pay  inter- 
est in  consideration  of  forbearance  may  be  prosecuted  in  a  suit  on 
the  note  against  all  the  makers.5 


- 


£367.  Effect  of  non-joinder. 

V'-ry  little  has  been  said  in  this  state  as  to  the  penalty  incurred 
l>y  the  splitting  of  a  cause  of  action.  The  rule  has  been  stated  as 
follows:  Where  claims  constitute  a  single  cause  of  action,  though 
arising  on  different  transactions,  or  at  different  periods,  as,  for  in- 
stance, a  running  account,  or  successive  instalments  of  rent  actually 
accrued,  a  judgment  for  a  part  bars  an  action  for  the  rest;  but  if 
they  are  such  that,  although  they  might  be  joined,  they  must  be 
separately  stated  as  separate  causes  of  action,  even  though  they 
arose  at  the  same  time  or  on  the  same  contract,  a  judgment  on  one 
does  not  bar  an  action  on  the  other,  unless  by  establishing  some 
matter  fatal  to  both.6 

1  Milliken  v.  Callahan  Co.,  69  T.  205  (8  S.  W.  Rep.  681).     Demurrer  properly 
sustained  to  a  petition  which  with  a  claim  against  several  defendants  for  dam- 
ages for  assault  and  battery  joined  a  claim  against  one  of  them  for  money  had 
and  received.     Degress  v.  Hubbard,  2  U.  C.  735. 

Action  against  a  sheriff  for  wrongful  seizure  of  goods  cannot  be  joined  with 
a  suit  on  an  indemnity  bond,  executed  to  the  sheriff,  against  the  makers  of  such 
bond.  Longcope  v.  Bruce,  44  T.  434. 

2  Bond  v.  Dillard,  50  T.  302. 

8  Oliver  v.  Robertson,  41  T.  422. 

4  Messner  v.  Lewis,  20  T.  211. 

»Knapp  v.  Mills,  20  T.  123. 

«St  L.,  L  M.  &  S.  Ry.  Co.  v.  Edwards,  3  App.  C.  C.,  §  346. 


CHAPTER  XYIII. 


PERSONAL  ATTENDANCE  OF  WITNESSES. 


368.  Subpoenas  for  witnesses;   form 

and  service. 

369.  Attendance    of  witnesses,  how 

enforced;  fees. 

370.  Diligence  must  be  used  to  pro- 

cure attendance  of  witnesses. 
871.  Party  summoning  witness  liable 
for  his  fees;  taxation  of. 


§  372.  Refusal  to  testify. 

373.  Privileged  from  arrest. 

374.  Parties  compelled  to  attend  and 

testify. 

375.  Interpreters. 

376.  Subpoena  duces  tecum. 


§  368.  Subpoenas  for  witnesses;  form  and  service. 

The  clerk  of  the  district  or  county  court,  at  the  request  of  any 
party  to  a  suit  pending  in  his  court,  or  of  his  agent  or  attorney,  is 
required  to  issue  a  subpoena  for  any  witness  or  witnesses  who  may 
be  represented  to  reside  within  the  county  or  be  found  therein  at 
the  time  of  the  trial.  The  style  of  the  subpoena  must  be  "The 
State  of  Texas."  It  must  state  the  names  of  the  parties  to  the  suit, 
the  court  in  which  the  same  is  pending,  the  time  and  place  at  which 
the  witness  is  required  to  appear,  and  the  party  at  whose  instance 
he  is  summoned.  It  must  be  dated  and  tested  by  the  clerk,  but 
need  not  be  under  the  seal  of  the  court,  and  the  date  of  its  issuance 
must  be  noted  thereon.  Subpoenas  may  be  executed  and  returned 
at  any  time  before  the  trial  of  the  cause,  and  are  served  by  being 
read  to  the  witness;  service  may  be  accepted  by  any  witness  by  a 
written  memorandum,  signed  by  him,  attached  to  the  subpoena.1 

§  369.  Attendance  of  witness,  how  enforced;  fees. 

Every  witness  summoned  in  any  suit  must  attend  the  court  from 
day  to  day,  and  from  term  to  term,  until  discharged  by  the  court 
or  party  summoning  him.  If  any  witness,  after  being  duly  sum- 
moned, shall  fail  to  attend,  he  may  be  fined  by  the  court  as  for  a 
contempt  of  court,  and  an  attachment  may  issue  against  the  body 

1 R.  S.  2264-2266.  By  article  1448  of  the  Revised  Statutes  it  is  provided  that 
subpoenas  shall  be  issued  without  the  seal  of  the  court,  and  may  be  made  re- 
turnable forthwith,  or  on  any  day  for  which  the  trial  of  the  cause  may  be  set. 

A  subpoena  directed  out  of  the  county  of  the  trial  is  void;  and  a  witness  sum- 
moned when  found  within  the  county,  or  a  resident  removing  out  of  the  county 
after  being  subpoenaed,  is  required  to  attend  only  at  the  term  to  which  he  was 
subpoenaed.  Sapp  v.  King,  66  T.  570  (1  S.  W.  Rep.  466).  Witnesses  are  not  bound 
to  follow  the  case  to  another  county  to  which  the  venue  is  changed.  Danger- 
field  v.  Paschal,  20  T.  536. 


§§370,371.]          PKKSii.VM.    AITKNDANCE    OF    WITNES-  365 

of  such  witness  to  compel  his  attendance;  but  no  such  fine  shall  be 
imposed,  nor  shall  such  attachment  issue  in  a  civil  suit,  until  it  shall 
be  shown  to  the  court,  by  affidavit  of  the  party,  his  agent  or  attor- 
ney, that  his  lawful  fees  have  been  paid  or  tendered.1  Witnesses  are 
allowed  a  fee  of  one  dollar  for  each  and  every  day  they  may  be  in 
attendance  on  the  court,  and  six  cents  for  every  mile  they  may 
have  to  travel  in  going  to  and  returning  therefrom.2 

?  370.  Diligence  must  be  used  to  procure  attendance  of  witnesses. 

It  is  the  duty  of  the  party  to  use  reasonable  diligence  to  procure 
the  attendance  of  witnesses  whose  testimony  is  necessary  to  estab- 
lish his  case,  as  set  forth  in  his  petition,  irrespective  of  what  may 
be  the  defendant's  answer.  He  cannot  safely  wait  for  the  coming 
in  of  the  defendant's  answer  before  subpoenaing  his  witnesses;  if  he 
•does  so,  it  will  be  at  his  peril.3  And  so  it  is  the  duty  of  the  defend- 
ant, as  soon  as  he  is  served  with  the  citation,  to  take  the  steps  nec- 
essary to  procure  the  testimony  in  support  of  his  defense.'-'  Neither 
party  can  postpone  the  preparation  for  trial,  but  each  must,  at  the 
first  term  of  the  court,  be  prepared  to  support  by  proof  his  own 
case,  or  show  a  reasonable  excuse  for  his  failure  to  do  so.5  Tin.' 
subpoena  must  be  lodged  with  the  sheriff  in  time  to  perfect  service 
and  allow  the  witness  a  reasonable  time  for  attendance  before  the 
trial  of  the  cause.6  The  deposition  of  a  male  witness  residing  in  the 
county  need  not  be  taken,  unless  by  reason  of  age,  infirmity,  sick- 
ness or  official  duty  he  will  not  be  able  to  attend  court,  or  unless  he 
is  about  to  leave  the  state  or  county,  and  will  probably  not  be  pres- 
ent at  the  trial.  In  the  absence  of  any  of  these  obstacles,  diligence 
is  shown  by  the  use  of  the  ordinary  process  to  procure  the  attend- 
ance of  the  witness.7 

§  371.  Party  summoning  witness  liable  for  his  fees;  taxation  of. 
The  party  at  whose  instance  the  witness  is  summoned  is  liable  to 
him  for  his  fees  as  soon  as  the  services  are  rendered,  and  the  latter 

1  R  S.  2267.  A  witness  is  not  in  contempt  for  failure  to  obey  a  subpoena,  un- 
less his  fees  have  been  paid  or  tendered  (Tex.  &  Pac.  Ry.  Co.  v.  Hall,  83  T.  675,  19 
S.  W.  Rep.  121);  but  it  does  not  followthat  a  court  ought  to  refuse  a  continuance 
because  this  had  not  been  done  in  a  case  in  which  the  absence  of  the  witness  is 
caused  by  sickness  and  not  from  unwillingness  to  attend  until  his  fees  are  paid 
or  tendered.  Dillingham  v.  Ellis,  86  T.  447  (25  S.  W.  Rep.  618).  And  see  Bryce  v. 
Jones,  38  T.  205;  Texas  Trans.  Co,  v.  H^att,  54  T.  213;  a  &  T.  C.  Ry.  Co.  v. 
Wheeler,  1  App.  C.  C.,  §  170;  also  the  chapter  on  CONTINUANCE. 

2R  S.  2268. 

8  Osborn  v.  Scott,  13  T.  59. 

4  Conner  v.  Mackey.  20  T.  747. 

•Williams  v.  Talbot,  27  T.  159;  Flournoy  v.  Marx,  33  T.  786. 

•Williams  v.  Edwards,  15  T.  41;  1  Greenleaf,  Ev.,  §  314. 

7  R  S.  2273;  Dillingham  v.  Ellis,  86  T.  447  (25  S.  W.  Rep.  618).  See  the  chapter 
on  CONTINUANCE. 


36G  PERSONAL   ATTENDANCE    OF   WITNESSES. 

may  maintain  an  action  against  him  therefor.1  It  is  the  duty  of 
the  clerk,  upon  the  affidavit  of  the  witness,  at  any  time  before  the 
issuance  of  execution,2  to  issue  to  him  a  certificate,  showing  the 
amount  of  compensation  to  which  he  is  entitled ; 3  and  this  certifi- 
cate is  prima  facie  evidence  of  the  right  of  the  witness  to  recover 
his  fees  for  the  time  and  mileage  therein  stated.4  Where  the  witness 
is  subpoenaed  in  several  suits,  pending  at  the  same  time  and  place, 
at  the  instance  of  the  same  person,  he  is  entitled  to  compensation 
in  each  case.5  On  the  final  determination  of  the  suit  the  fees  of  the 
witnesses  will  be  taxed  in  the  bill  of  costs  against  the  party  cast.6 

It  is  only  when  a  witness  appears  in  obedience  to  an  authorized 
subpoena  that  he  is  entitled  to  per  diem  and  mileage ;  if  he  obeys  a 
subpoena  directed  to  him  out  of  the  county,  his  act  is  wholly  vol- 
untary and  he  cannot  recover  fees ;  or  if  he  is  subpoenaed  while  a 
resident  of  the  county  and  afterwards  removes  from  the  county,  or 
is  subpoenaed  when  found  within  the  county,  he  is  bound  to  attend 
the  term  only  to  which  he  was  subpoenaed,  and  cannot  recover  fees 
and  mileage  for  attendance  at  subsequent  terms.7  If  the  witness 
attends  in  obedience  to  an  authorized  subpoena,  he  is  entitled  to  his- 
fees  whether  he  testifies  or  not.8 

§  372.  Eefusal  to  testify. 

Any  witness  refusing  to  give  evidence  may  be  committed  to  the 
county  jail,  there  to  remain  without  bail  until  he  shall  consent  to- 
give  evidence.9  The  privilege  of  a  witness  to  decline  to  answer  is- 
personal.10 

JR.  S.  2268;  Flores  v.  Thorn,  8  T.  377;  Sapp  v.  King,  66  T.  570  (1  S.  W.  Rep. 
466).  The  statute  of  limitations  commences  to  run  against  a  claim  for  fees  of 
a  witness  as  soon  as  the  services  are  rendered,  and  the  claim  is  barred  in  two 
years.  Flores  v.  Thorn,  8  T.  377;  Crawford  v.  Crane.  19  T.  145;  Ballard  v.  Murphy, 
4  App.  C.  C.,  §  171.  The  witness  may  claim  his  fees,  and  they  may  be  taxed  in 
the  bill  of  costs,  at  any  time  before  the  issuance  of  execution.  Hardy  v.  De 
Leon,  7  T.  466. 

2  Hardy  v.  De  Leon,  7  T.  466. 

3  R.  S.  2268. 

4  Crawford  v.  Crane,  19  T.  145.    A  witness'  affidavit,  for  the  purpose  of  prov- 
ing the  costs  to  which  he  is  entitled,  should  fully  state  the  number  of  days  he 
has  attended  and  the  number  of  miles  for  which  he  is  entitled  to  charge.    A 
party  testifying  in  the  case,  under  the  act  of  1871,  is  not  entitled  to  fees.   Gause 
v.  Edminston,  35  T.  69. 

s  Flores  v.  Thorn,  8  T.  377;  Harris  v.  Coleman,  8  T.  278. 
«R.  S.  2268;  Anderson  v.  McKenney,  22  T.  653. 

7  Sapp  v.  King,  66  T.  570  (1  S.  W.  Rep.  466).    An  action  will  not  lie  for  fees 
unless  the  judgment  is  dormant;  the  remedy  is  by  execution.  Ballard  v.  Murphy, 
4  App.  C.  C.,  §  171. 

8  Perry  v.  Harris,  1  App.  C.  C.,  §  478. 

9  R.  S.  2269.    Refusal  to  answer  a  proper  and  legal  question,  in  reference  to  a 
matter  over  which  the  court  has  jurisdiction,  is  a  contempt.    Holrnan  v.  Mayor 
of  Austin,  34  T.  668. 

10Ingersol  v.  McWillie,  87  T.  647  (30  S.  W.  Rep.  869). 


73-376.]          PERSONAL   ATTENDANCE   OF    WITNESSES.  367 

§  373.  Privileged  from  arrest. 

Witnesses  are  privileged  from  arrest,  except  in  cases  of  treason, 
felony  and  breach  of  the  peace,  during  their  attendance  at  court, 
and  in  going  to  and  returning  therefrom,  allowing  one  day  for  each 
twenty-five  miles  from  their  place  of  abode.1 

§  374.  Parties  compelled  to  attend  and  testify. 

Either  party  to  a  suit  may  examine  the  opposing  party  as  a  wit- 
ness, and  shall  have  the  same  process  to  compel  his  attendance  as 
in  the  case  of  any  other  witness.  His  examination  is  conducted 
and  his  testimony  is  received  under  the  same  rules  applicable  to 
other  witnesses.2  • 

§  375.  Interpreters. 

The  court  may,  when  necessary,  appoint  interpreters,  who  may 
be  summoned  in  the  same  manner  as  witnesses,  and  are  subject  to 
the  same  penalties  for  disobedience,  and  are  entitled  to  the  same 
fees.3 

§  376.  Subpoana  duces  tecum,  when  issued. 

If  the  witness  have  in  his  possession  any  written  instrument 
which  could  be  used  as  evidence,  he  must  be  served  with  a  subpoena 
duces  tecum,  commanding  him  to  bring  it  with  him  and  produce  it 
at  the  trial.  The  subpoena  must  be  signed,  dated  and  served  in  the 
same  manner  as  the  common  subpoena.4  The  witness  must  attend 
at  the  trial,  with  the  instrument  required,  and  produce  it  in  evi- 
dence, unless  he  have  some  lawful  or  reasonable  excuse  for  with- 
holding it,  of  the  validity  of  which  excuse  the  court,  and  not  the 
witness,  is  to  judge.5  It  is  no  excuse  that  the  legal  custody  of  the 
instrument  belongs  to  another,  if  it  be  in  the  actual  possession  of 
the  witness;6  but  if  it  tend  to  criminate  himself7  or  his  client8  (if 
the  witness  be  an  attorney),  the  court  will  not  compel  him  to  pro- 
duce it.  If  the  witness,  instead  of  bringing  the  papers  required, 
deliver  them  to  the  opposite  party,  by  whom  they  are  withheld, 
the  court  will  allow  secondary  evidence  of  the  contents  of  them  to 
be  given,  without  a  notice  to  produce  the  original.9  Third  per- 
sons, having  no  interest  in  the  controversy,  but  who  have  in.  their 

i  R.  S.  2270. 
2R.  S.  2271. 

»R.  S.  2272;  Kuhlman  v.  Medlinka,  29  T.  385;  Schunior  v.  Russell,  83  T.  83  (18 
S.  W.  Rep.  484). 
<!GreenL  Ev.,  §  309. 

8  Amey  v.  Long,  9  East,  473.    And  see  5  Esp.  90. 
«1  Camp.  14,  180,  note  6;  Holt,  239;  2  Stark.  203. 
'  1  Esp.  105. 
8  4  Burr.  1637. 
»4  Esp.  255;  1  PhiL  Ev.  424-5. 


368  PERSONAL   ATTENDANCE   OF   WITNESSES.  [§  376. 

possession  books  and  papers  in  which  a  party  to  the  suit  has  an  in- 
terest, may  be  compelled  to  produce  them.  By  the  word  interest, 
as  here  used,  it  is  understood  that  if  the  documents  are  material 
evidence  for  the  party  demanding  them  he  has  an  interest  in  them, 
and  their  production  may  be  compelled  by  either  bill  of  discovery 
or  subpoena  duces  tecum.1 

i  Simon  v.  Ash,  1  Civ.  App.  202  (20  S.  "W.  Rep.  719).  The  public  records  of  the 
United  States  cannot  be  obtained  by  a  subpoana  duces  tecum  in  a  suit  to  which 
the  United  States  is  not  a  party.  Coons  v.  Renick,  11  T.  134.  See  Greer  v. 
Richardson  Drug  Store,  1  Civ.  App.  634  (20  S.  W.  Rep.  1127). 


CHAPTER  XIX. 


DEPOSITIONS  OF  WITNESSES. 


377.  May  be  taken,  when. 

878.  Notice,  and  service  thereof. 

879.  Notice  by  publication. 

380.  Perpetuating  testimony. 

381.  Cross-interrogatories;      either 

party  may  use  depositions. 

382.  Commission  to  take  depositions. 

383.  Officers  authorized  to  take  depo- 

sitions. 

884  Subpoena  for  witness;  refusal  to 
appear  or  answer. 


§  385.  Execution  of  the  commission. 

386.  Officer's  certificate. 

387.  Corrections    and  amendments; 

loss  of  depositions. 

388.  Return  of  the  depositions. 

389.  Opening  depositions. 

390.  Objections  to  depositions. 

391.  May  be  read  subject  to  excep- 

tions. 


§  377.  May  be  taken,  when. 

Depositions  of  witnesses  may  be  taken  when  it  is  desired  to  per- 
petuate the  testimony  of  a  witness,  and  in  all  civil  suits,  whether  the 
witness  resides  in  the  county  where  the  suit  is  brought  or  out  of  it.1 
Since  the  adoption  of  this  article,  and  especially  since  the  repeal  of 
article  2234  of  the  Revised  Statutes  of  1879  by  the  act  of  1881,  it  is 
held  that  the  depositions  of  a  witness  may  be  read,  although  the 
witness  be  present  at  the  trial,  some  of  the  cases  adding  the  qualifi- 
cation, "  if  no  objection  is  made." 2  The  later  cases  hold  that  it  rests 
within  the  discretion  of  the  court.3  It  is  also  within  the  discretion 
of  the  court  to  permit  the  deposition,  or  a  part  of  it,  to  be  read  after 
the  witness  has  been  examined  orally.4 

§  378.  Notice,  and  service  thereol. 

A  party  wishing  to  take  the  deposition  of  a  witness  in  a  suit  pend- 
ing must  file  with  the  clerk  a  notice  of  his  intention  to  apply  for  a 
commission  to  take  the  answers  of  the  witness  to  interrogatories 
attached  to  such  notice.  The  notice  must  state  the  name  and  resi- 

1 R  8.  2273.  In  contesting  an  election  of  members  of  the  legislature  either 
party  may  take  depositions.  R  S,  1804m. 

1  Randall  v.  Collins,  52  T.  435;  Schmick  v.  Noel,  64  T.  406;  Vance  v.  Upson,  66 
T.  476  (1  S.  W.  Rep.  179);  McClure  v.  Sheek,  68  T.  426  (4  a  W.  Rep.  552);  Johnson 
v.  Doss,  1  App.  C.  C,,  §  1077. 

» O'Connor  v.  Andrews,  81  T.  28  (16  a  W.  Rep.  628);  Hittson  v.  State  Nat 
Bank,  14  a  W.  Rep.  780, 

«  Schmick  v.  Noel,  64  T.  406,  and  72  T.  1  (8  a  W.  Rep.  83);  Hittson  v.  State  Nat 
Bank,  14  a  W.  Rep.  780.    Witnesses  resident  in  the  county  are  not  required  to 
be  subpoenaed  to  render  the  depositions  admissible,  and  no  reason  need  be  given 
for  a  failure  to  issue  subpoanas,    H.  &  T.  C.  Ry.  Co.  v.  Ray,  28  S.  W.  Rep.  256. 
24 


370  DEPOSITIONS   OF   WITNESSES.  [§  379. 

clence  of  the  witness,  or  the  place  where  he  is  to  be  found,  and  the 
suit  in  which  the  deposition  is  to  be  used,  and  a  copy  thereof,  and 
of  the  attached  interrogatories,  must  be  served  upon  the  adverse 
party,  or  his  attorney  of  record,  five  days  before  the  issuance  of  a 
commission.  When  the  adverse  party  is  a  corporation,  or  joint- 
stock  association,  service  may  be  made  upon  the  president,  secretary 
or  treasurer,  or  upon  the  local  agent  representing  such  corporation 
or  association  in  the  county  in  which  the  suit  is  pending,  or  by  leav- 
ing a  copy  of  the  notice  and  attached  interrogatories  at  the  prin- 
cipal office  of  the  corporation  or  association  during  office  hours.1 

§  370.  Notice  given  by  publication. 

When  it  is  shown  to  the  court,  by  affidavit  filed  therein,  that 
either  party  is  beyond  the  jurisdiction  of  the  court,  or  cannot  be 
found,  or  has  deceased  since  the  commencement  of  the  suit,  and 
such  death  has  been  suggested  at  a  prior  term  of  the  court,  so  that 
the  notice  and  copy  of  the  interrogatories  cannot  be  served  upon 
him,  and  such  party  has  no  attorney  of  record  upon  whom  they  can 
be  served;  or  if  he  be  deceased,  and  all  the  persons  entitled  to  claim 
by  or  through  such  deceased  defendant  have  not  made  themselves 
parties  to  the  suit,  and  are  unknown,  the  party  wishing  to  take 
depositions  may  file  his  interrogatories  in  the  court  where  suit  is 
pending,  and  the  clerk  will  thereupon  cause  a  notice  to  be  published 
in  some  newspaper  for  thirty  days,  stating  the  number  of  the  suit, 
the  names  of  the  original  parties,  in  what  court  the  suit  is  pending, 
the  name  and  residence  of  the  witnesses  to  whom  interrogatories 
are  propounded,  and  that  a  commission  will  issue  on  or  after  the 
thirtieth  day  after  such  publication  to  take  the  deposition  of  such 
witness.  Where  service  of  process  has  been  made  by  publication 
and  the  defendant  has  not  answered  within  the  time  prescribed  by 

1 R.  S.  2274.  That  a  party  was  not  served  with  notice  of  taking  depositions  is 
an  objection  going  to  the  form  and  manner  of  taking  the  depositions.  Mann  v. 
Mathews,  82  T.  98  (17  S.  W.  Rep.  927).  An  objection  to  the  reading  of  a  deposi- 
tion based  on  the  fact  that,  in  the  notice  to  take  the  depositions,  the  witness 
was  described  by  a  given  name  different  from  his  true  name,  is  an  objection  to 
the  manner  and  form  of  taking,  which  must  be  reduced  to  writing,  filed,  and 
notice  thereof  given  to  the  opposing  party.  Jones  v.  Ford,  60  T.  127.  If  the 
name  and  residence  of  the  witness  are  not  truly  given,  the  depositions  are  not 
taken  in  conformity  with  the  statute,  and  should  be  excluded.  Garner  v.  Cut- 
ler, 28  T.  176.  A  deposition  cannot  be  used  against  those  who  were  not  parties 
to  the  suit  at  the  time  it  was  taken.  Dalsheimer  v.  Morris,  8  Civ.  App.  268  (28 
S.  W.  Rep.  240).  A  defective  notice  in  regard  to  the  taking  of  depositions  served 
upon  one  of  two  defendants  is  cured  by  a  proper  and  legal  notice  served  upon 
his  co-defendant,  who  is  the  attorney  of  record  representing  both  defendants. 
Newman  v.  Dodson,  61  T.  91. 

The  provision  as  to  service  on  corporations,  etc.,  was  adopted  in  1887,  and 
prior  thereto  it  had  been  held  that  service  on  the  local  agent  of  a  railroad  com- 
pany was  sufficient.  Mo.  Pac.  Ry.  Co.  v.  Collier,  63  T.  318. 


^1.]  roamom   "I     v,  l  .  371 

ia\v,  service  of  notice  of  filing  interrogatories  may  be  made  at  anv 
time  after  the  day  when  the  defendant  is  required  to  answer,  by 
tiling  such  notice  among  the  papers  of  the  suit  at  least  twenty  days 
before  the  issuance  of  a  commission ;  or  the  service  may  be  made 
by  publication,  as  above  indicated.1 

£  380.  Perpetuating  testimony. 

When  any  person  may  anticipate  the  institution  of  a  suit  in  which 
he  may  be  interested,  and  may  desire  to  perpetuate  the  testimony 
of  a  witness  to  be  used  in  such  suit,  he,  his  agent  or  attorney,  may 
file  a  written  statement  in  the  proper  court  of  the  county  where 
such  suit  could  be  instituted,  representing  the  facts  and  the  names 
and  residences,  if  known,  of  the  persons  supposed  to  be  interested 
adversely  to  said  person;  a  copy  of  the  statement  and  writ  must 
be  served  on  the  persons  interested  adversely.  AVhere  such  person, 
his  agent  or  attorney,  shall,  at  the  time  of  filing  such  statement, 
make  affidavit  that  the  names  and  residences  of  the  heirs,  success- 
ors, or  legal  representative  of  any  deceased  person,  are  unknown 
to  him,  or  reside  beyond  the  jurisdiction  of  the  state,  the  clerk  will 
issue  a  like  writ,  which  must  be  served  on  such  unknown  or  non- 
resident persons  by  publication  in  some  newspaper,  in  the  mode  and 
manner  designated  by  law  for  the  service  of  original  process  upon 
non-residents  or  unknown  parties;  after  which  the  depositions  of 
such  witness  may  be  taken  and  returned  by  the  parties  making  the 
statement  in  the  form  and  under  the  rules  prescribed  for  taking 
testimony  by  deposition,  and  the  testimony  may  be  used  in  any 
suit  which  may  be  thereafter  instituted  by  or  between  any  of  the 
parties  to  the  statement,  or  those  claiming  under  them,  in  like  man- 
ner as  if  such  depositions  had  been  taken  after  the  institution  of 
such  suit  or  suits;  and  when  such  suits  have  been  instituted,  all 
such  depositions  so  taken  and  returned  are  subject  to  the  like  excep- 
tions as  other  depositions.2  It  is  only  necessary  that  those  who  are 
made  defendants  have  or  are  supposed  to  have  an  adverse  interest. 
It  is  not  necessary  that  all  the  parties  adversely  interested  should 
be  joined  as  defendants,  since  the  testimony  perpetuated  can  only 
affect  those  who  are  made  parties.3 

Si  381.  Cross-interrogatories;  either  party  may  use  depositions. 

Whenever  one  party  may  file  interrogatories  for  the  purpose  of 
taking  the  deposition  of  a  witness,  the  opposite  party  may  file  cross- 
interrogatories  at  any  time  before  the  commission  issues,  and  a 
copy  of  the  same  must  accompany  the  direct  interrogatories,  to 

l  R  S.  2275.  2276. 

-'  R.  S.  2277. 

-St.  L.,  A.  &  T.  Ry.  Co.  v.  Harris.  73  T.  375  (11  S.  W.  Rep.  405). 


372  DEPOSITIONS   OF   WITNESSES.  [§  382. 

be  answered  and  returned  therewith.1  When  cross-interrogatories 
have  been  filed  and  answered,  either  party  has  the  right  to  use  the 
depositions  on  the  trial.2  "Where  no  cross-interrogatories  have  been 
filed,  the  party  at  whose  instance  the  commission  was  issued  may 
decline  to  use  the  deposition  on  the  trial,  and  the  opposite  party 
will  have  no  right  to  read  it.8  But  if  he  reads  a  part  of  it,  the 
other  party  may  read  the  part  omitted.4 

§  382.  Commission  to  take  depositions. 

After  the  service  of  the  notice  of  filing  the  interrogatories  has 
been  completed,  the  clerk  Avill  issue  a  commission  to  take  the  depo- 
sition of  the  witness  named  in  the  notice.  The  notice  must  be 
served  five  days  before  the  commission  issues.5  "When  notice  is 
given  by  publication,  the  commission  issues,  on  the  application  of 
the  party,  his  agent  or  attorney,  on  or  after  the  thirtieth  day  after 
publication.6  "Where  the  citation  is  served  by  publication,  and  the 
notice  of  filing  interrogatories  is  filed  among  the  papers  of  the  case, 
the  commission  issues  after  twenty  days  from  the  filing  of  such  no- 
tice.7 The  style  of  the  commission  is  "  The  State  of  Texas."  It 
must  be  dated  and  tested  as  other  process ;  it  must  be  addressed  to 
the  several  officers  authorized  to  take  depositions,  and  must  author- 
ize and  require  them,  or  either  of  them,  to  summon  the  witness 
forthwith,  and  to  take  his  answers  under  oath  to  the  direct  and 

i  R.  S.  2278;  Ector  v.  Wiggins,  30  T.  55. 

2R.  S.  2288;  John  P.  King  Manuf.  Co.  v.  Solomon,  25  S.  W.  Rep.  449. 

3Norvell  v.  Oury,  18  T.  31;  Harris  v.  Leavitt,  16  T.  340;  Town  of  Refugio  v. 
Byrne,  25  T.  193;  Brandon  v.  McNelly,  46  T.  76;  San  A.  &  A.  P.  Ry.  Co.  v.  Har- 
rison, 72  T.  478  (10  S.  W.  Rep.  556);  Watson  v.  Miller,  82  T.  279  (17  S.  W.  Rep. 
1053).  The  rule  is  not  changed  by  the  fact  that  the  interrogatories  were  pro- 
pounded to  several  witnesses,  and  the  depositions  were  taken  and  returned  to- 
gether, and  the  depositions  of  the  other  witnesses  had  been  read  by  the  party 
taking  the  testimony.  Brandon  v.  McNelly,  46  T.  76. 

4  Ferguson  v.  Luce,  1  App.  C.  C.,  §  537. 

5  R.  S.  2274,  2279.    Either  party  to  a  cause  has  a  right  to  obtain  the  commis- 
sion and  take  the  deposition  of  a  witness  to  whom  interrogatories  and  cross- 
interrogatories  have  been  propounded  and  filed,  when  notice  of  the  intention  to 
take  the  deposition  has  been  given.    Burton  v.  G.,  H.  &  S.  A.  Ry.  Co.,  61  T.  526. 

Interrogatories  were  filed  and  served  on  defendant  January  16,  were  crossed, 
and  commission  issued  on  January  21.  Objection  to  the  deposition  was  prop- 
erly overruled.  Heidenheimer  v.  Walthew,  2  Civ.  App.  501  (21  S.  W.  Rep.  981). 
Commission  may  be  taken  out  on  the  fifth  day  after  notice,  and  if  cross-inter- 
rogatories are  not  embraced  in  a  commission  taken  out  on  that  day,  it  will  be 
presumed  that  they  were  not  filed  when  the  commission  was  issued,  and  their 
omission  is  not  a  valid  objection  to  the  deposition.  McKinney  v.  O'Connor,  26 
T.  5.  Where  the  defendant  "accepted  service  of  the  within  interrogatories, 
and  waived  the  five  days'  notice  of  copies  of  notice  and  interrogatories,"  it  was 
held  proper  to  issue  the  commission  on  the  same  day.  Moore  v.  Gammel,  13  T. 
120. 

6R.  S.  2275. 

?R.  S.  2276. 


-3.]  DEPOSITIONS   OF   WJ1  373 

cross-interrogatories,  if  any,  a  copy  of  which  must  be  attached  to 
the  commission,  and  to  return  without  delay  the  commission  and 
inu-iToo'utories,  and  the  answers  of  the  witness  thereto,  to  the  clerk 
of  the  proper  court,  giving  the  official  and  postoffioe  address  of  the 
officer.1 

S  383.  Officers  authorized  to  take  depositions. 
The  commission  must  be  addressed  to  the  following  officers, 
either  of  whom  may  execute  and  return  it : 

1.  If  the  witness  be  alleged  to  reside  or  be  within  the  state,  to 
any  clerk  of  the  district  court,  any  judge  or  clerk  of  the  county 
court,  or  any  notary  public  of  the  proper  county. 

2.  If  the  witness  be  alleged  to  reside  or  be  without  the  state,  and 
within  the  United  States,  to  any  clerk  of  a  court  of  record  having 
a  seal,  any  notary  public  or  any  commissioner  of  deeds,  duly  ap- 
pointed under  the  laws  of  this  state,  within  some  other  state  or 
territory. 

3.  If  the  witness  is  alleged  to  reside  or  be  without  the  United 
States,  to  any  notary  public,  or  any  minister,  commissioner  or 
<-/i'ir<je  d?  affaires  of  the  tlnited  States,  resident  in  and  accredited  to 
the  country  where  the  deposition  may  be  taken,  or  any  consul-gen- 
eral, consul,  vice-consul,  commercial  agent,  vice-commercial  agent, 
deputy-consul  or  consular-agent  of  the  United  States  resident  in 
such  country.2 

Every  commissioner  of  deeds  appointed  by  the  governor  of  the 
state  has  authority  to  take  depositions  under  a  commission  issued 
to  him  according  to  law,  from  any  court  in  this  state,  to  be  used  as 
evidence  in  any  cause  pending  in  a  court  of  the  same,  when  re- 
turned as  prescribed  by  law.  Commissioners  may  be  appointed  in 
each  of  the  states  and  territories  of  the  United  States,  in  the  Dis- 
trict of  Columbia,  and  in  foreign  countries.3  It  is  also  provided  by 
statute  that  "  notaries  public  shall  have  power  to  take  the  deposi- 
tions of  witnesses  in  the  manner  prescribed  by  law."  * 

i  R.  s.  2280. 

2R.  S.  2281.    Deputy  clerks  may  take  depositions.    R.  a  1084, 1086,  1189,  1142. 

3R.S.  618,  622. 

*R.  S.  3513.  The  fact  that  the  officer  who  took  the  deposition  of  a  witm-^ 
occupied  the  same  room  with  an  attorney  for  one  of  the  parties,  or  that  he 
was  himself  an  attorney  for  one  of  the  parties  in  other  oases,  affords  no  ground 
for  suppressing  the  deposition.  Burton  v.  G.,  H.  &  S.  A.  Ry.  Co.,  Cl  T.  528.  It 
was  not  error  to  refuse  a  motion  to  suppress  depositions  taken  by  a  notary  pub- 
lic who  subsequently  was  employed  as  an  attorney  in  the  case  and  by  the  party 
in  whose  behalf  the  depositions  were  taken.  Welborne  v.  Downing,  73  T.  5^7 
(11  S.  W.  Rep.  501). 

The  courts  have  no  power  to  appoint  to  take  depositions  any  one  not  author- 
ized by  statute.  State  v.  Cardinas,  47  T.  251. 


374:  DEPOSITIONS    OF   WITNESSES.  [§§  384:,  385. 

§  384.  Subpoena  for  witness;  refusal  to  appear  or  answer. 

Upon  the  receipt  of  the  commission  by  any  officer  to  whom  it 
is  addressed,  residing  in  this  state,  if  the  witness  does  not  volun- 
tarily appear,  he  shall  issue  a  subpoena  directed  to  the  sheriff  or 
any  constable  of  his  county,  requiring  him  to  summon  the  witness 
to  appear  and  answer  interrogatories  at  a  time  and  place  named  in 
the  subpoena.1  If  the  witness,  after  being  duly  summoned,  shall  fail 
to  appear,  or  having  appeared  shall  refuse  to  answer  the  interroga- 
tories, the  officer  may  issue  an  attachment  against  him  and  fine  and 
imprison  him  in  like  manner  as  the  district  and  county  courts  are 
empowered  to  do  in  like  cases.2 

The  refusal  of  a  witness  to  answer  a  material  question  should  not 
be  permitted  by  the  officer  taking  depositions.  The  question  whether 
a  deposition  should  be  excluded  because  of  the  failure  of  a  witness 
to  answer  a  question  is  to  a  large  extent  left  to  the  discretion  of 
the  court;  it  should  not  be  excluded  for  any  casual  omission  to 
answer  an  unimportant  question.3  The  refusal  of  a  witness  to  an- 
swer relevant  and  proper  interrogatories  is  good  ground  for  exclud- 
ing his  deposition,  if  notice  of  the  intention  to  move  to  exclude  be 
given  before  the  commencement  of  the  trial,  as  required  by  the 
statute.4 

§  385.  Execution  of  the  commission. 

Upon  the  appearance  of  the  witness,  the  officer  to  whom  the 
commission  is  directed  must  proceed  to  take  his  answer  to  the  in- 
terrogatories.8 The  answers  must  be  reduced  to  writing,  and  signed 

*  R.  S.  2282. 

2  R.  S.  2283. 

3H.  &  T.  C.  Ry.  Co.  v.  Shirley,  54  T.  125. 

4  Lee  v.  Stowe,  57  T.  444.  Motion  to  suppress  depositions  of  a  witness  was  made 
on  the  ground  that  witness  had  failed  to  answer  a  material  cross-interrogatory. 
It  appearing  from  other  parts  of  the  depositions  that  the  witness  had  stated 
clearly  facts  sought  for  by  the  cross-interrogatory,  the  objection  was  properly 
overruled.  Bush  v.  Barren,  78  T.  5  (14  S.  W.  Rep.  238). 

6  It  is  a  gross  irregularity  for  an  attorney  to  write  the  answers  of  witnesses 
whose  testimony  is  being  taken  in  behalf  of  his  client,  for  which  a  deposition,  as 
a  rule,  should  be  suppressed.  But  where  the  facts  repel  every  inference  of  fraud 
and  show  that  no  possible  •actual  injury  has  occurred  to  the  adverse  party  from 
the  manner  in  which  the  depositions  were  taken,  it  is  not  error  to  refuse  a  mo- 
tion to  suppress  the  depositions  on  that  ground.  Schunior  v.  Russell,  83  T.  83 
(18  S.  W.  Rep.  484).  Where  counsel  interrogated  witnesses  at  his  office,  and 
from  the  data  obtained  prepared  answers  and  sent  them  to  the  witnesses  to  be 
sworn  to  before  the  officer,  the  deposition  was  held  not  admissible.  Phoenix 
Assur.  Co.  v.  Freedman,  19  S.  W.  Rep.  1010. 

The  depositions  of  a  witness  written  out  by  the  officer  taking  them,  and  prop- 
erly returned  after  being  sworn  to  and  subscribed  by  the  witness,  may  be  read 
in  evidence,  though  the  answers  be  literally  the  same  given  by  the  same  witness 
in  a  former  deposition,  and  which  were  in  the  handwriting  of  the  party  to  the 


-."..]  DEPOSITIONS   OF   WITNESSBg.  075 

and  swoin  to  by  the  witness.1  The  officer  mast  certify  that  the 
answers  were  sig.ied  and  sworn  to  by  the  witness  before  him;  and 
must  seal  them  np  in  an  envelope,  together  with  the  commission 
and  interrogatories  and  cross-interrogatories,  if  any,  and  write  his 
name  across  the  seal  and  indorse  on  the  envelope  the  names  of  the 
parties  to  the  suit,  and  of  the  witnesses,  and  direct  the  package  to 
the  clerk  of  the  conrt  from  which  the  commission  issued.2  The 
officer  has  authority  when  be  deems  it  expedient  to  summon  and 
s \vear  an  interpreter  to  facilitate  the  taking  of  the  deposition.3  The 
officer  is  not  required  to  employ  an  interpreter  if  he  is  able  to  trans- 
late the  language  of  the  witness.4  The  depositions  may  be  tuk«-n 
in  a  foreign  language  and  translated  in  court  by  a  sworn  interpreter.5 

suit  at  whose  instance  they  were  taken.  Lundy  v.  Pierson,  6?  T.  233  (2  S.  W. 
Rep.  737).  While  it  is  the  right  of  a  party  to  ascertain  from  a  witness  what  he 
kn<>\vs  about  the  case,  for  guidance  in  propounding  interrogatories  to  such  wit- 
ness, it  is  improper  for  his  answers  to  be  first  taken  in  writing  under  oath  or 
otherwise,  and  for  them  when  so  taken  to  be  used  to  aid  or  influence  the  wit- 
ness in  answering  interrogatories  subsequently  propounded.  Depositions  so 
taken  should  be  suppressed,  because  it  should  be  conclusively  presumed  that  the 
witness  may  have  been  influenced  by  the  course  pursued.  Greening  v.  Keel,  84 
T.  326  (19  S."  W.  Rep.  43.-,). 

The  court  correctly  refused  to  exclude  a  deposition  because  a  letter  by  which 
the  witness  refreshed  his  memory  as  to  a  date  was  not  attached  thereto,  the 
witness  not  having  been  asked  to  attach  the  letter,  and  no  effort  having  been 
made  to  quash  the  deposition  before  entering  into  trial  Bailey  v.  Laws,  3  Civ. 
App.  529  (23  S.  W.  Rep.  20). 

1  The  witness  may  be  sworn  either  before  or  after  his  answers  are  taken.  San 
A.  &  A.  P.  Ry.  Co.  V.  Gillum,  30  S.  W.  Rep.  697,  31  id.  356. 

*  R.  S.  2284.  Where  the  clerk  of  the  district  court  in  which  the  suit  is  pend- 
ing takes  the  depositions,  he  may  direct  them  to  the  court  instead  of  to  the  clerk, 
Eakin  v.  Morris,  1  App.  C.  C.,  g  883. 

A  bill  of  exceptions  to  the  refusal  of  the  court  to  suppress  a  deposition,  on  the 
ground  that  the  officer  taking  it  had  failed  to  write  his  name  across  the  seal, 
should  show  that  some  part  of  the  deposition  was  read  in  evidence  on  the  trial. 
W.  U.  Tel.  Co.  v.  Hinkle.  3  Civ.  App.  518  (23  S.  W.  Rep.  1004). 

Neither  the  caption  nor  certificate  to  a  deposition  disclosed  in  what  case  the 
deposition  was  taken.  By  the  heading  it  purported  to  be  taken  "in  obediV-ice 
to  the  annexed  commission,"  and  it  was  held  that  the  case  was  not  sufficiently 
identified.  Southern  Pac.  Ry.  Co.  v.  Royal,  23  S.  W.  Rep.  316. 

'  R,  S.  2285. 

<Munk  v.  Weidner,  29  S.  W.  Rep.  409;  State  v.  Cardinas,  47  T.  251.  The  wit- 
nesses did  not  understand  the  English  language.  The  officer  did,  but  desired 
aid  in  writing  in  English  the  answers.  An  attorney  for  the  party  propounding 
the  interrogatories  was  present  who  understood  the  language  of  the  witnesses 
as  well  as  English.  The  officer  was  aided  by  the  attorney,  who  interpreted  the 
questions  to  the  witnesses  and  wrote  down  in  English  their  answers.  The  offi- 
cer controlled  the  work  and  verified  the  answers.  It  was  conceded  that  the 
answers  were  correctly  taken.  The  fact  that  the  attorney  was  not  sworn  as  in- 
terpreter did  not  vitiate  the  depositions.  Schunior  v.  Russell,  83  T.  83  (18  S.  W. 
Rep.  484). 

»Cavasos  v.  Gonzales,  33  T.  133. 


37C  DEPOSITIONS   OF   WITNESSES.  [§§  386,  387. 

£  386.  Officer's  certificate. 

The  officer  must  certify  that  the  answers  of  the  witness  were 
sworn  to  by  the  witness  before  him.1  No  technical  form  of  certifi- 
cate is  required.  It  is  sufficient  if  it  shows  a  substantial  compliance 
with  the  statute.2  The  only  method  by  which  it  can  be  known  that 
what  appears  to  be  the  answers  of  a  witness  taken  through  written 
interrogatories  and  a  commission,  within  the  meaning  of  the  law, 
are  such  answers,  is  by  the  certificate  of  the  officer  to  the  fact 
that  the  answers  of  the  witness  were  signed  and  sworn  to  by  the 
witness  before  him.  The  certificate  of  the  officer  must  show  that 
what  purports  to  be  the  answers  of  the  witness  became  such  by  his 
signing  and  swearing  to  them  before  such  officer.  Unless  this  is 
shown,  the  depositions  are  not  admissible  in  eviden  je.3 

The  cause  must  be  identified  by  stating  its  title  in  the  caption  or 
the  conclusion  of  the  certificate ; 4  the  caption  may  be  resorted  to  in 
aid  of  the  certificate,  but  together  they  must  show  a  compliance 
with  the  statute.5 

§  387.  Corrections  and  amendments;  loss  of  depositions. 

A  defective  certificate  to  a  deposition  may  be  corrected  by  the 
officer  who  took  the  deposition,  in  the  presence  of  and  under  the 
direction  of  the  court ;  and  it  may  be  that  under  the  court's  direc- 
tion the  officer  might  make  such  a  correction  elsewhere  than  in  the 
presence  of  the  court,  but  if  so  it  ought  to  be  done  under  such  cir- 
cumstances as  would  preclude  all  collusion  or  substitution  of  one 

* 

1 R.  S.  2284. 

2  Ballard  v.  Perry,  28  T.  347;  H.  &  T.  C.  Ry.  Co.  v.  Larkin,  64  T.  454.  A  certifi- 
cate to  the  effect  that  the  witness  signed  '•  the  attached  interrogatories,"  after 
having  been  duly  sworn,  is  sufficient.  It  is  understood  to  mean  that  he  signed 
the  answers  after  being  sworn.  San  A.  &  A.  P.  Ry.  Co.  v.  Gillum,  30  S.  W.  Rep. 
697,  31  id.  356. 

3Sabine  &  E.  T.  Ry.  Co.  v.  Broussard,  69  T.  617  (7  S.  W.  Rep.  374);  Trammell 
v.  McDade,  29  T.  360;  Patton  v.  King,  26  T.  685;  Chapman  v.  Allen,  15  T.  278; 
Slaughter  v.  Rivenbark,  35  T.  68;  Thompson  v.  Haile,  12  T.  139;  Bush  v.  Barren, 
78  T.  5  (14  S.  W.  Rep.  238);  Emberson  v.  McKenna,  4  App.  C.  C.,  g  94. 

4  Slaughter  v.  Rivenbark,  35  T.  68. 

5  Bush  v.  Barron,  78  T.  5  (14  S.  W.  Rep.  238);  H.  &  T.  C.  Ry.  Co.  v.  Larkin,  64 
T.  454.    When  the  captions  of  depositions  identified  the  court,  the  cause,  and  the 
witnesses'by  their  proper  designations,  referring  to  the  interrogatories  and  cross- 
interrogatories,  and  stating  that  the  witnesses  were  first  duly  sworn,  and  the 
certificates  at  the  conclusion  of  the  depositions  stated  that  the  answers  of  the 
witnesses  (naming  them)  "  were  taken,  sworn  to  and  subscribed  before  me,"  it 
was  held  to  be  in  substantial  compliance  with  the  statute.   Carroll  v.  Welch,  26  T. 
147.   Where  the  officer  taking  the  deposition  certified  that  he  had  examined  the 
witness  "  under  oath  by  virtue  of  the  commission  hereto  attached,  and  the  above 
and  foregoing  contain  all  his  answers,  verbatim  et  literatim,  which  were  sworn 
to  before  me  in  due  form  of  law,  and  signed,  he  making  his  mark  and  sign 
thereto,"  it  was  held  that  the  certificate  was  in  substantial  compliance  with 
the  statute,    Neil  v,  Cady,  26  T.  286. 


§  388.]  DEPOSITIONS    OF    WITNKSSES.  .".77 

set  of  answers  for  another.1  It  is  competent  for  the  court  to  ;iil<>\v 
an  officer  taking  depositions  to  supply  an  omission,  the  court  being 
satisfied  that  the  depositions  have  not  been  tampered  with.3  The 
statute  intends  to  secure  and  preserve  evidence  of  the  correctness 
of  depositions  and  of  their  freedom  from  being  tampered  with  by 
the  observance  of  the  regulations  prescribed  and  not  otherwise.3 

When  depositions  on  file  in  a  cause  pending  are  lost  or  destroyed, 
they  may  be  substituted  under  the  provisions  of  the  statute.* 

§  388.  Return  of  the  depositions. 

Depositions  may  be  returned  to  the  court  either  by  mail,  by  a 
party  interested  in  taking  the  same,  or  by  any  other  person.  If 

IG.,  H.  &  S.  A.  Ry.  Co.  v.  Matula,  79  T.  577  (15  S.  W.  Rep.  573).  In  this  e.-uu 
depositions  were  returned  with  defective  certificate.  Motion  to  suppress  for 
the  defect  was  met  by  motion  to  amend  the  certificate.  The  amendment  wr.s 
allowed  by  the  officer  forwarding  a  perfect  certificate  to  the  attorney  of  the 
party  desiring  to  use  the  deposition.  This  was  attached  to  the  answers,  and  tin- 
motion  to  suppress  overruled.  It  was  held  error  to  permit  the  amendment  in 
this  manner. 

When  depositions  have  been  suppressed  for  defective  certificate,  and  with- 
drawn, without  objection  from  the  opposite  party  and  by  leave  of  the  court,  to 
have  the  certificate  corrected,  the  opposite  party  cannot  have  them  suppressed 
when  offered  again,  on  the  ground  that  their  withdrawal  and  correction  \veiv 
unauthorized.  Price  v.  Horton,  4  Civ.  App.  526  (23  S.  W.  Rep.  501).  Where  a 
deposition  was  excluded  after  the  trial  commenced  on  account  of  a  defect  in 
the  certificate  of  the  officer,  and  leave  to  amend  the  certificate  was  refused,  the 
supreme  court  said;  "Whether  the  court  should  have  permitted  the  officer  to 
amend  his  certificate  after  the  trial  had  commenced  was  a  question  addressed 
to  the  discretion  of  the  court.  If  it  had  been  proposed  before  going  into  trial, 
we  think  it  should  have  been  allowed;  or  if  refused,  it  might  have  been  good 
cause  for  a  continuance."  Chapman  v.  Allen,  15  T.  278. 

SMillikin  v.  Smoot,  71  T.  759  (12  S.  W.  Rep.  59). 

3Creager  v.  Douglass,  77  T.  484  (14  S.  W.  Rep,  150),  The  return  of  the  deposi- 
tions was  in  accordance  with  the  statute,  but  the  jurat  was  defective,  and  with- 
out authority  of  the  court  counsel  for  the  party  taking  the  depositions  detached 
the  answers  and  sent  them  to  the  officer,  who  having  corrected  [the  jurat  re- 
turned the  answers.  And  it  was  held  that  suoh  withdrawal  etc.,  were  siu-h 
irregularities  as  to  be  fatal  to  the  use  of  the  answers  as  testimony  afterwards. 

Interrogatories  were  filed  to  take  the  depositions  of  a  witness.  The  notice  stated 
the  county  of  his  residence.  The  depositions  were  regularly  taken  by  an  officer 
of  that  county  and  properly  returned.  An  error  by  the  clerk  in  the  commission, 
giving  a  wrong  name  for  the  residence  of  the  witness,  was  properly  amended 
under  the  direction  of  the  court.  Irvin  v.  Bevil,  80  T.  332  (1(5  S.  W.  Rep.  -JH 
Counsel  agreed  that  the  depositions  of  a  witness  might  bo  taken  to  the  original 
direct  and  cross-interrogatories.  The  answers  were  defectively  returned.  One 
party  detached  the  original  interrogatories  and  had  a  commission  issued  un  Irr 
which  the  depositions  of  the  witness  were  taken  and  regularly  returned.  It 
was  hold  proper  for  the  party  desiring  the  testimony  of  the  witness  to  proceed 
at  onoe  to  retake  the  depositions  without  waiting  to  ascertain  uhetlior  the  de- 
fect would  be  waived.  It  was  not  proper  to  withdraw  the  original  interroga- 
tories filed,  A  copy  should  have  been  obtained.  But  the  irregularity  is  not 
ground  of  reversal,  Boone  v.  Miller,  73  T,  557  (11  S.  W.  Rep.  551), 

4  Jury  v,  Shearman,  2  \J,  C,  SOI. 


378  DEPOSITIONS   OF    WITNESSES.  [§§  380,  390. 

sent  by  mail,  the  postmaster  or  his  deputy  mailing  the  same  must 
indorse  thereon  that  he  received  them  from  the  hands  of  the  officer 
before  Avhom  they  were  taken;  and  the  clerk  taking  them  from 
the  postoffice  must  indorse  on  them  that  he  received  them  from 
the  postoffice,  and  sign  his  name  thereto.  If  sent  otherwise  than 
by  mail,  the  person  delivering  them  into  court  must  make  affidavit 
before  the  clerk  that  he  received  them  from  the  hands  of  the  offi- 
cer before  whom  they  were  taken;  that  they  have  not  been  out  of 
his  possession  since,  and  that  they  have  undergone  no  alteration.1 
The  provision  of  the  statute  regulating  the  transmission  of  the 
deposition  by  mail  is  directory ;  a  substantial  compliance  with  its 
directions  is  sufficient  where  there  is  nothing  to  raise  a  presump- 
tion of  fraud.2  A  postmaster's  certificate  signed  by  his  clerk  is 
sufficient.3  The  receipt  of  the  postmaster  upon  the  envelope  need 
not  state  the  name  of  the  postoffice  at  which  the  deposition  was 
mailed.  This  is  shown  by  the  postmark.4  The  depositions  may  be 
delivered  directly  to  the  clerk  by  the  officer  taking  them.5  Failure 
of  the  postmaster  to  indorse  on  the  depositions  the  name  of  the 
person  from  whom  he  received  them  is  fatal,  if  the  objection  be 
made  before  the  trial.6 

§  389.  Opening  depositions. 

Depositions,  after  being  filed,  may  be  opened  by  the  clerk  at  the 
request  of  either  party  or  his  counsel;  and  the  clerk  must  indorse 
on  the  depositions  upon  what  day  and  at  wrhose  request  they  were 
opened,  signing  his  name  thereto;  they  then  remain  on  file  for  the 
inspection  of  either  party.7 

§  390.  Objections  to  depositions. 

"When  a  deposition  has  been  filed  in  the  court  at  least  one  entire 
day  before  the  day  on  which  the  case  is  called  for  trial,  no  objec- 
tion to  the  form  thereof  or  to  the  manner  of  taking  the  same  will 
be  heard  unless  such  objections  are  in  waiting  and  notice  thereof  is 

1  R.  S.  2286. 

2  Garner  v.  Cleveland,  35  T.  74;  Laird  v.  Ives,  45  T.  621. 

3  Greenwood  v.  Woodward,  1ST.  1. 

4  Anderson  v.  Rogge,  28  S.  W.  Rep.  106. 

5  Andrews  v.  Parker,  48  T.  94. 

6 Laird  v.  Ives.  45  T.  621.  The  indorsement  on  the  deposition  was:  "Received 
this  package  from  the  hands  of  W.  W.  Gray,  clerk,  the  officer  before  whom  the 
deposition  was  taken.  G.  S.  Smith,  P.  M."  The  postmark  on  the  envelope  was: 
"Woodbury,  Tenn.,  July  21."  From  the  certificate  of  the  officer  who  took  the 
deposition  it  appears  he  was  "  clerk  of  Cameron  county,  Tennessee."  The  ob- 
jections to  the  deposition  were :  (1)  That  the  signature  did  not  show  that  the 
person  signing  was  a  postmaster.,  (2)  If  the  initials  were  sufficient  for  that  pur- 
pose, then  it  does  not  appear  at  what  point  he  was  postmaster.  The  certificate 
was  held  sufficient.  C.  T.  &  N.  W.  R.  Co.  v.  Hancock,  2  U.  C.  301. 

"  R.  S.  2287. 


§  3'.'  DEPOSITIONS    OF    WITNESSES.  379 

given  to  the  opposite  counsel  before  the  trial  commences.  The  ob- 
jtvtion  must  be  made  and  determined  at  the  first  term  of  the  court 
after  the  deposition  has  been  filed,  and  not  thereafter.1  When  notice 
is  given  of  objections  to  the  form  or  manner  of  taking  and  returning 
depositions,  either  party  may  require  it  to  be  put  on  the  motion 
docket  and  tried  as  other  motions;  and,  if  not  tried  sooner,  it  must 
be  decided  before  either  party  shall  be  required  to  announce  readi- 

•  for  trial  on  the  fact 

That  an  interrogatory  has  not  been  answered  is  an  objection  to 
the  manner  of  taking;3  or  that  it  is  leading;4  or  that  an  answer  is 
not  responsive  or  pertinent;5  or  that  the  plaintiff  was  present  when 
the  depositions  were  taken ; 6  or  that  proper  notice  of  the  taking 
was  not  given ; "  or  as  to  the  form  of  the  interrogatory,  in  that  it  is 
too  general; 8  or  that  there  was  a  variance  between  the  name  of  the 
witness  as  stated  in  the  commission  and  that-signed  to  the  answers/' 

The  notice  is  in  time  if  given  before  both  parties  have  announced 
ready  for  trial.  Until  then  the  trial  of  the  suit  has  not,  in  contem- 
plation of  the  statute,  commenced.10 

Only  such  questions  as  go  to  the  form  and  manner  of  taking  are 
required  to  be  made  in  writing  and  notice  thereof  given  before  the 
trial.  Objections  on  the  ground  that  the  testimony  is  hearsay,  sec- 

!R.  S.  2289.  The  last  sentence  of  the  article  was  added  in  1893.  Acts  1893. 
p.  5.  See  Croft  v.  Raines.  10  T.  520;  Bracken  v.  Neill,  15  T.  109:  Hagerty  v. 
Scott,  10  T.  52.1;  Garner  v.  Cutler,  28  T.  176;  Leach  v.  Dodson,  64  T.  185:  T.  &  P. 
Ry.  Co.  v.  Burnes,  2  U.  C.  239. 

2  Rule  23.    It  will  be  noticed  that  the  statute  refers  to  the  form  of  the  deposi- 
tion and  to  the  manner  of  taking  it,  while  the  rule,  by  its  grammatical  construc- 
tion, has  reference  to  the  form  and  manner  of  taking  and  returning  the  deposi- 
tion. 

3  Snow  v.  Price,  1  App.  C.  C..  §  1342:  Lindsay  v.  Jaffray.  55  T.  626;  Scott  v.  Delk, 
14  T.  341:  Hopkins  v.  Clark.  20  T.  64. 

«  Brunswig  v.  Kramer,  2  App.  C.  C.,  §  803;  Davidson  v.  Wallingford,  30  S.  W. 
Rep.  286.  Answers  to  leading  interrogatories  may  be  excluded  at  the  trial, 
where  the  objection  is  made  before  the  trial  commences  and  notice  is  given. 
Kean  v.  Zundelowitz,  29  S.  W.  Rep.  930;  Lee  v.  Stowe,  57  T.  444:  Marx  v.  Heiden- 
heimer,  63  T.  304 

»G.,  C.  &  S.  F.  Ry.  Co.«e.  Kemp,  30  S.  W.  Rep.  714;  Unknown  Heics  of  Wright 
v.  Wren,  16  S.  W.  Rep.  996;  Mo.  Pac,  Ry.  Co.  v.  Peay,  7  Civ.  App.  400  (26  a  W. 
Rep.  768);  I.  &  G.  N.  Ry.  Co.  v.  Kuehn,  2  Civ.  App.  210  (21  S.  \V.  Rep.  58);  Lee  v. 
Stowe,  57  T.  444;  Parker  v.  Chancellor.  78  T.  524  (15  S.  W.  Rep.  157);  G..  i.  M 
&  F.  Ry.  Co.  v.  Shearer,  1  Civ.  App.  343  (21  &  W.  Rep.  343);  Harris  v.  Nations. 
79  T.  409  (15  S.  W.  Rep.  262);  Mo.  Pac.  Ry.  Co.  v.  Ivy,  71  T.  409  (9  S.  W.  Rep.  346); 
Brown  v.  Mitchell,  To  T.  9  (12  S.  W.  Rep.  608). 

*Hill  v.  Smith,  6  Civ.  Apn,  312  (25  S.  W.  Rep.  1079). 

T  Grigsby  v.  May,  57  T.  255. 

»G.,  C.  &  S.  F.  Ry.  Co.  v.  Richards,  83  T.  2o:j:  Mo.  Pac.  Ry.  Co.  v.  Smith.  84  T. 
348;  Wade  v.  Love,  69  T.  522;  I.  &  G.  N.  Ry.  Co.  v.  Prince,  77  T.  560;  Allerkamp 
v.  Gallagher,  24  &  W.  Rep.  372. 

9  Mo.  Pac.  Ry.  Co.  v.  Smith.  84  T.  348. 

w  H.  &  T.  C.  Ry.  Co.  v.  Burke,  55  T.  323. 


380  DEPOSITIONS    OF   WITNESSES.  [§391. 

ondary,  or  irrelevant,  may  be  made  when  the  testimony  is  offered ; ] 
so,  also,  as  to  questions  and  answers  as  to  matters  of  opinion  or 
conclusions  of  law.2 

"When  a  motion  to  suppress  depositions  is  filed  and  notice  thereof 
given  before  the  trial  of  the  cause  begins,  the  motion  may  be  con- 
sidered and  determined  by  the  judge,  either  before  the  trial  begins 
or  during  its  progress,  in  his  discretion.3  But  this  rule  will  hold 
only  in  case  a  term  of  the  court  has  not  elapsed  between  the  time 
of  the  filing  of  the  deposition  and  the  trial,  as  the  amendment  of 
1893  requires  that  the  objection  be  made  and  determined  at  the  first 
term  of  the  court  after  the  deposition  is  filed, 

§  391.  May  be  read  subject  to  exceptions. 

Depositions  may  be  read  in  evidence  upon  the  trial  of  any  suit  in 
which  they  are  taken,  subject  to  ail  legal  exceptions  which  might 
be  made  to  the  interrogatories  and  answers  were  the  witness  per- 
sonally present  before  the  court  giving  evidence.4  If  a  deposition 
contains  testimony  not  pertinent  to  the  direct  and  cross-interroga- 
tories propounded,  such  matter  will  be  deemed  surplusage,  and  may 
be  stricken  out  by  the  court  upon  objection  thereto,5 

A  deposition  taken  by  agreement  in  a  former  suit  is  admissible  in 
a  subsequent  suit  between  the  same  parties  where  the  same  subject- 
matter  is  in  controversy.  Such  deposition  is  admissible  both  at 
common  law  and  under  the  statute.6 

IR.  S.  2290;  Woosley  v.  McMahon,  46  T.  62;  Lott  v.  King,  79  T.  292. 

3Purnell  v.  Gandy,  46  T.  191. 

3Coleman  v.  Colgate,  69  T.  88;  So.  Pac.  R.  Co.  v.  Royal,  23  S.  W.  Rep.  316. 

•*  R.  8.  2290.  Objections  that  the  testimony  is  hearsay,  secondary  or  irrelevant 
may  be  made  when  the  deposition  is  offered.  Woosley  v.  McMahon,  46  T.  62; 
Purnell  v.  Gandy,  46  T.  191. 

Objections  to  a  deposition  are  to  be  determined  by  the  court,  and  not  by  the 
jury,  notwithstanding  questions  of  fact  may  be  involved.  Garner  v.  Cutler, 
28  T.  176;  Thompson  v.  Herring,  27  T.  282, 

»R.  S.  2291. 

6  Emerson  v.  Navarro,  81  T.  338.  That  cross-interrogatories  to  a  witness  sought 
information  regarding  matters  to  which  the  witness  testified  in  a  former  deposi- 
tion affords  no  reason  for  striking  them  out.  Evansicn  v.  G.,  C.  <&  S,  F.  Ry.  Co., 
61  T.  24. 

The  rules  adopted  in  the  United  States  circuit  court  for  the  northern  district 
of  Texas,  adopted  at  its  April  term,  1880,  authorize  the  taking  of  depositions  in 
the  United  States  court  in  the  northern  district  of  Texas  according  to  the  state 
laws.  Applied  to  a  case  removed  to  the  United  States  court  and  retransferred, 
depositions  having  been  taken  while  the  suit  was  in  the  United  States  court. 
Mo.  Pac,  Ry.  Co,  v.  White,  80  T.  202  (15  S,  W,  Rep,  808), 


CHAPTER  XX. 

DEPOSITIONS  OF  PARTIES. 


§  392.  A  party  may  take  his  own  depo- 
sition. 

393.  A  party  may  take  the  deposition 

of  adverse  party. 

394.  Notice;  interrogatories;  execu- 

tion of  the  commission. 


§  895.  Answer  may  embrace  what ;  con- 
tradiction. 

890.  Interrogatories  taken  as  con- 
fessed. 

397.  Objectionsto  interrogatories  and 
answers. 


§  392.  A  party  may  take  his  own  deposition. 

The  deposition  of  either  party  to  a  suit  who  is  a  competent  wit- 
ness therein  may  be  taken  in  his  own  behalf,  in  the  same  manner 
and  with  like  effect  with  the  depositions  of  other  witnesses.1 

§  393.  A  party  may  take  deposition  of  adverse  party. 

Either  party  to  a  suit  may  examine  the  opposing  party  as  a  wit- 
ness, upon  interrogatories  filed  in  the  cause,  and  shall  have  the 
same  process  to  obtain  his  testimony  as  in  the  case  of  any  other 
•witness.  His  examination  is  conducted  and  his  testimony  received 
in  the  same  manner  and  according  to  the  same  rules  which  apply  in 
the  case  of  any  other  witness,  subject  to  the  provisions  of  the  stat- 
ute on  the  subject.1 

A  deposition  of  a  party  to  a  suit  may  be  read,  though  the  depo- 
nent is  present  at  the  trial.2  There  is  no  statute  or  practice  which 

1 R.  S.  2292.  When  a  party  to  a  suit  in  testifying  by  deposition  taken  at  his 
own  instance  declines  to  produce,  in  response  to  a  cross-interrogatory,  letters  or 
documents  in  his  possession  which  are  called  for  by  his  adversary,  on  the  ground 
that  they  are  too  voluminous,  and  not  that  they  are  irrelevant  to  the  issue,  the 
deposition  should  on  motion  be  suppressed.  Coleman  v.  Colgate,  69  T.  88  (6  S.  W. 
Rep.  553).  The  deposition  of  a  plaintiff  may  be  read  in  evidence,  though  he  is 
present  in  court  and  also  testifies  in  rebuttal,  especially  where  it  does  not  ap- 
pear that  defendant  was  denied  the  right  to  put  any  question  to  the  witness 
while  so  testifying.  Dillingham  v.  Hodges,  26  S.  W.  Rep.  86. 

Where  a  party  to  the  suit  testified  by  depositions,  it  was  held  competent,  on 
cross'interrogatories,  to  show  the  manner  in  which  the  answers  had  been  pre- 
pared and  taken  down,  and  as  to  the  persons  present  at  the  time  of  taking  the 
depositions,  It  seems  that  a  deposition  taken  by  an  employee  of  the  witness 
testifying  in  his  own  behalf,  on  motion,  should  be  suppressed.  But  if  such  depo- 
sition is  not  suppressed,  the  party  offering  it  is  entitled  to  have  it  read  without 
the  discredit  which  may  attach  to  it  in  the  minds  of  the  jury  by  proof  of  the 
fact  that  the  officer,  by  reason  of  his  relations  to  the  parties,  was  not  legally  au- 
tliorized  to  take  it  Blum  v,  Jones,  86  T.  492  (25  S.  W,  Rep.  694). 

1  R  S.  2293. 

2  Cannon  v.  Sweet,  28  S,  W,  Rep,  718. 


3S2  DEPOSITIONS   OF    PARTIES.  [§§  394,  395. 

authorizes  a  party  to  a  suit  to  propound  interrogatories  to  his  ad- 
versary after  trial  and  judgment,  to  be  used  in  support  of  a  motion 
for  new  trial.  A  failure  to  answer  them  cannot  be  construed  into 
the  confession  of  a  fact  that  they  were  intended  to  establish.1 

The  law  makes  no  provision  by  which  the  deposition  of  a  cor- 
poration can  be  taken,  and  it  is  not  bound  by  the  deposition  of  its 
managing  officer.2 

§  394.  Notice;  interrogatories;  execution  oi  commission. 

In  taking  the  deposition  of  an  adverse  party  it  is  not  necessary 
to  give  notice  of  the  filing  of  the  interrogatories,  or  to  serve  a  copy 
thereof  on  the  adverse  party,  before  a  commission  shall  issue  to  take 
the  answers  thereto;  nor  is  it  any  objection  to  the  interrogatories 
that  they  are  leading  in  their  character.  A  commission  to  take  the 
answers  of  the  party  is  issued  by  the  clerk  and  may  be  executed  and 
returned  by  any  authorized  officer  as  in  other  cases.3 

§  395.  Answer  may  embrace  what;  contradiction. 
The  party  interrogated  may,  in  answer  to  questions  propounded, 
state  any  matter  connected  with  the  cause  and  pertinent  to  the  issue 

1  Cleveland  v.  Sims,  69  T.  153  (6  S.  W.  Rep.  634).  Either  party  may  use  the 
deposition,  although  the  interrogatories  have  not  been  crossed;  the  party  testify- 
ing has  the  right  to  use  his  answers  in  evidence,  although  the  party  taking  the 
deposition  declines  to  use  it  Hadley  v.  Upshaw,  27  T.  547;  Handle v  v.  Leigh, 
8  T.  129. 

The  deposition  of  a  defendant  taken  by  the  plaintiff  without  notice  or  oppor- 
tunity to  be  crossed  may  be  read  in  evidence  by  the  plaintiff  after  the  death  of 
defendant.  Heidenheimer  v.  Walthew.  2  Civ.  App.  501  (21  a  W.  Rep.  981). 

*  Brown  v.  Thompson,  79  T.  58  (15  -S.  W.  Rep.  168);  G.,  G  &  S.  F.  Ry.  Co.  v. 
Nelson,  5  Civ.  App.  387  (24  S.  W.  Rep.  588). 

3  R.  S.  2294,  2295.  It  is  not  sufficient  ground  for  suppressing  the  depositions 
of  a  party,  taken  without  notice  by  the  adverse  party,  that  counsel  for  the  party 
taking  the  testimony  was  present  and  aided  the  notary  taking  the  answers  by 
reading  the  interrogatories;  nor  is  such  witness  entitled  to  time  for  preparation 
or  to  get  advice  about  his  answers  —  notice  is  not  required  by  the  statute. 
Parker  v.  Chancellor,  73  T.  475  (11  S.  W.  Rep.  503).  Where  interrogatories  were 
propounded  to  a  party  to  the  suit  and  his  answers  thereto  taken  without  the 
issuance  of  a  commi«sion,  the  deposition  was,  on  motion,  properly  suppressed. 
W.  U.  TeL  Co.  v.  Haman,  2  Civ.  App.  100  (22  S.  W.  Rep.  1133).  A  deposition  of 
a  party  to  a  suit  cannot  be  used  against  those  who  were  made  parties  after  it 
was  taken.  Dalsheimer  v.  Morris,  8  Civ.  App.  268. 

Depositions  of  the  plaintiff  were  excluded  for  irregularity  in  the  manner  of 
return,  but  on  proof  that  they  were  signed  by  the  plaintiff  they  were  held  ad- 
missible as  declarations  or  admissions  when  offered  in  evideace  by  defendants. 
Parker  v.  Chancellor,  78  T.  524  (16  S.  W.  Rep.  15). 

The  statutes  do  not  prescribe  any  qualifications  for  commissioners  to  take 
depositions,  further  than  to  restrict  the  authority  to  certain  designated  officers. 
The  officer  ought  to  be  impartial  between  the  parties,  and  it  is  held  that  an  offi- 
cer who  is  an  employee  of  a  mercantile  establishment  is  incompetent  to  take  a 
deposition  on  behalf  of  his  employer,  and  especially  the  deposition  of  the  em- 
ployer himself.  Blum  v.  Jones,  8G  T.  492  (25  S.  W.  Rep.  694).  A  surety  on  a  cost 
bond  lias  been  held  incompetent  Floyd  v.  Rice,  28  T.  341. 


§30*1]  DEI  OF    PAKi:  383 

to  be  tried:  and  the  adverse  party  may  contradict  the  answers  bv 
any  other  competent  testimony,  in  the  same  manner  as  he  might 
contradict  the  testimony  of  any  other  witness.1  Where  a  defend- 
ant whose  depositions  are  being  taken  is  asked  about  transactions 
with  plaintiff's  intestate,  he  has  the  right  to  explain  the  whole  trans- 
action, and  tell  as  well  what  is  in  his  favor  as  what  is  against  him.- 

?  396.  Interrogatories  taken  as  confessed. 

If  the  party  interrogated  refuse  to  answer,  the  officer  execut- 
ing the  commission  must  certify  such  refusal,  and  any  interrogatory 
which  the  party  refuses  to  answer,  or  which  he  answers  evasively, , 
is  to  be  taken  as  confessed.1  Interrogatories  arc  not  to  be  taken  as 
confessed  unless  the  refusal  to  answer  is  wilful.4  It  is  not  intended 
that  the  certificate  of  the  officer  to  the  refusal  should  be  conclusive. 
"NVhere  it  is  shown  that  the  defendant  did  not  refuse  to  answer  in- 
terrogatories propounded  to  him  by  the  plaintiffs,  or  that  he  decline. I 
under  a  mistake  as  to  his  rights,  or  that  the  notary  induced  him  to 
believe  that  he  need  not  answer,  the  interrogatories  should  not  be 
taken  for  confessed,  provided  that  at  the  trial  he  shows  that  he  is 
willing  to  answer  them.  If  the  interrogatories,  with  the  certifi- 
cate of  the  officer  to  the  refusal  to  answer,  be  filed  a  reasonable 
time  before  trial,  the  party  seeking  to  avoid  the  effeqt  of  the  offi- 
cer's certificate  should  file  a  motion  to  vacate  the  certificate  before 
the  trial  begins.5 

An  interrogatory  can  only  be  taken  as  confessed  when  it  is  rele- 
vant and  pertinent  to  some  right  existing  in  the  party  who  inter- 
rogates at  the  time  when  the  answer  is  required  by  the  officer 
executing  the  commission.  The  statute  was  evidently  enacted  to 
obviate  the  trouble  and  expense  of  filing  a  bill  of  discovery  in  aid 
of  suits  already  pending,  but  subject  to  the  same  rules  governing 
bills  of  discovery  in  respect  to  the  pertinency  of  the  matters  in- 
quired about.6  The  interrogatories  propounded  must  be  framed  so 

1  R.  a  2296. 

2  Jackson  v.  Mumford,  74  T.  104  (11  S.  W.  Rep.  1061).     Depositions  were  taken 
of  a  defendant  under  the  statute  without  notice.    Among  other  matters  the  de- 
fendant was  asked  concerning  transactions  between  him  and  the  testator  of 
plaintiff,  to  which  defendant  was  unable  to  answer  without  reference  to  his 
books,  which  were  twenty  miles  distant  from  where  he  was  required  to  answer, 
the  notary  refusing  to  allow  him  to  obtain  the  books  in  order  to  make  his  an- 
swers.   Upon  the  trial  the  defendant,  having  shown  sufficient  excuse  for  not 
giving  details  in  his  depositions,  was  entitled  to  give  them  when  on  the  stand 
as  a  witness.    It  was  error  to  exclude  the  testimony. 

»  R.  S.  2297. 

*  Rushing  v.  Willis,  28  T.  921;  Bounds  v.  Little,  75  T.  316  (12  S.  W.  Rep.  1109); 
Barnard  v.  Blum,  69  T.  603  (7  a  W.  Rep.  98);  Norton  v.  Davis,  83  T.  32  (18  3.  W. 
Rep.  430). 

»  Bounds  v.  Little,  75  T.  316  (12  &  W.  Rep.  1109). 

*  Barnard  v.  Blum,  09  T.  60S  (7  a  W.  Rep.  98). 


DEPOSITIONS    OF   PARTIES.  [§  397. 

as  to  distinctly  embody  the  fact  desired  to  be  proved.1  Interroga- 
tories propounded  to  one  not  a  party  to  the  suit  cannot  be  taken 
as  confessed  and  be  made  evidence  against  parties  to  the  suit  upon 
the  officer  charged  with  the  duty  of  taking  the  answers  certifying 
that  the  witness  would  not  answer  the  interrogatories.2 

The  statute  does  not  contemplate  an  immediate  compliance,  on 
pain  of  being  recusant.  The  request  that  the  party  have  time  to 
consult  his  attorney,  with  an  offer  the  next  day  to  answer,  followed 
by  a  willingness  to  answer  upon  the  trial,  were  reasons  which  re- 
quired that  the  certificate  of  the  officer  of  refusal  should  have 
been  set  aside,  as  well  as  the  order  taking  the  interrogatories  as 
confessed.8 

§  397.  Objections  to  interrogatories  and  answers. 

The  party  interrogated  may  upon  the  trial  of  the  case  take  ex- 
ception to  the  interrogatories  on  the  ground  that  they  are  not  per- 
tinent, and  to  the  answers  that  they  are  not  competent  evidence.4 
The  interrogatories  may  be  leading,6  but  subject  to  this  exception 
the  testimony  is  to  be  received  or  rejected  under  the  rules  applica- 
ble to  other  witnesses.  A  question  asking  for  the  opinion  of  the 
witness  instead  of  the  facts  need  not  be  answered,  and  will  not  be 
taken  as  confessed.6 

i  Church  v.  Waggoner,  78  T.  200  (14  S.  W.  Rep.  581). 

2Sweetzer  v.  Claflin,  74  T.  667  (12  S.  W.  Rep.  395). 

3  Robertson  v.  Melasky,  84  T.  559  (19  S.  W.  Rep.  776).  A  defendant  caused  in- 
terrogatories to  be  propounded  to  himself,  which  the  plaintiff  crossed.  Instead 
of  answering  them  he  appeared  before  the  officer  receiving  the  commission  and 
declined  to  answer,  on  the  ground  that  he  intended  to  attend  the  trial  and  tes- 
tify on  the  stand.  Having  appeared  at  the  trial  and  testified,  failure  to  answer 
the  cross-interrogatories  of  the  plaintiff  did  not  warrant  their  being  taken  as 
confessed.  Dunham  v.  Simon,  1  U.  C.  548.  See  Friend  v.  Miller,  62  T.  177;  G.,  C. 
&  S.  F.  Ry.  Co.  v.  Nolson,  5  Civ.  App.  387  (24  S.  W.  Rep.  588). 

«  R.  S.  2298. 

6R.S.  2294. 

6H.  &  T.  C.  Ry.  Co.  v.  Reason,  61  T.  613. 


CHAPTER  XXL 

NOTICE  TO  PRODUCE  PAPERS. 


398.  Notice  required,  when.      • 
899.  Order  for  the  inspection  of  writ- 
ings, when  made. 


§  400.  Notice  not  required,  when. 

401.  Form  and  service  of  notice. 

402.  Effect  of  producing  the  paper. 


£  398.  Notice  required,  when. 

When  any  paper  which  is  in  the  possession  of  the  opposite  party 
\vould  be  evidence  if  produced  on  trial,  notice  must  be  given  to  the 
] tarty  in  whose  possession  it  is,  or  his  attorney,  to  produce  it;  and 
if  he  neglects  to  do  so,  parol  evidence  may  be  given  of  its  contents.1 
If  the  paper  is  in  possession  of  the  attorney  of  the  party,  and  was 
delivered  to  him  by  his  client  as  supporting  the  action  or  defense, 
notice  to  produce  it  must  be  given,  and  the  party  cannot  have  the 
benefit  of  the  evidence  by  subpoenaing  the  attorney  and  compelling 
him  to  testify.2  But  where  notice  has  been  served,  the  attorney 
may  be  asked  whether  he  has  the  paper,  in  order  to  let  in  secondary 
evidence  of  it  if  it  be  not  produced.3 

1 1  GreeuL  Ev.,  §  560;  Fanner  v.  Simpson,  6  T.  303;  Newsom  v.  Davis,  20  T. 
419;  Loftin  v.  Nally,  24  T.  565;  Williams  v.  Duret,  25  T.  667. 

-'  McPherson  v.  Rathbone,  7  Wend.  216. 

3 1  Moo.  &  M.  235.  The  contents  of  a  letter  written  to  a  party  or  his  agent, 
against  whom  a  right  is  asserted,  is  only  admissible  when  sought  to  be  estab- 
lished by  parol  after  notice  given  to  produce  the  letter.  Ma  Pac.  Ry.  Co.  v. 
Johnson,  72  T.  95  (10  S.  W.  Rep.  325).  It  was  not  error  to  admit  as  secondary 
evidence  copies  of  letters  the  originals  of  which  were  in  the  possession  of  de- 
fendant, and  he  had  been  notified  to  produce  them  on  the  trial,  and  the  copies 
had  been  on  file  in  the  case  some  time,  and  had  been  read  without  objection  on 
<i  former  trial  of  the  same  case.  Battaglia  v.  Thomas,  5  Civ.  App.  563  (23  S.  W. 
Rep.  385,  1118).  Plaintiffs  were  not  notified  to  produce  original  letters  written 
them  by  defendant.  In  absence  of  such  notice  it  was  error  to  admit  copies. 
Hunter  v.  Lanius,  82  T.  677  (18  S.  W.  Rep.  201). 

Where  a  deed  which  a  party  desires  to  use  in  evidence  is  made  to  and  in  pos- 
session of  a  third  person,  the  party  must  either  have  it  produced  under  a  sub- 
poena ducea  tecum,  or  show  that  it  is  beyond  his  power  to  produce  it  in  some 
other  way,  before  he  will  be  allowed  to  introduce  secondary  evidence  of  its  con- 
tents. Greer  v.  Richardson  Drug  Store,  1  Civ.  App.  634  (20  S.  W.  Rep,  1127).  In 
an  action  to  recover  land  mortgaged  by  deed  absolute  in  form  to  secure  rents 
due  under  a  written  lease,  a  copy  of  the  lease  itself  fully  described  in  the  peti- 
tion is  admissible  in  evidence,  upon  notice  to  produce  being  given  to  defendant 
charged  with  its  possession  and  proof  of  correctness  of  the  copy.  Angel  v.  Sim- 
mons, 7  Civ.  App,  331  (26  S.  W.  Rep.  910). 

In  an  action  for  libel  it  was  shown  that  a  copy  of  the  black  list  (sought  to  be 
proved)  had  been  in  possession  of  an  assistant  superintendent  of  the  defendant 
railway  company ;  that  said  assistant  had  returned  the  paper  to  the  general  su- 
25 


386  NOTICE    TO   PRODUCE    PAPERS.  [§§  399,  400.. 

§  399.  Order  for  the  inspection  of  writings,  when  made. 

The  courts  of  common  law  may  also  make  an  order  for  the  in- 
spection of  writings  in  the  possession  of  one  party  to  a  suit  in  favor 
of  the  other.  The  extent  of  this  power  and  the  nature  of  the  order, 
whether  it  should  be  peremptory  or  in  the  shape  of  a  rule  to  enlarge- 
the  time  to  plead,  unless  the  writing  is  produced,  does  not  seem  to- 
be  very  clearly  agreed  upon ;  and  in  the  United  States  the  courts 
have  been  unwilling  to  exercise  the  power  except  when  it  is  given 
by  statute.  It  seems,  however,  to  be  agreed  that  when  the  action 
is  ex  contractu,  and  there  is  but  one  instrument  between  the  parties, 
which  is  in  the  possession  or  power  of  the  defendant,  to  which  the 
plaintiff  is  either  an  actual  party  or  a  party  in  interest,  and  of  whicbu 
he  has  been  refused  an  inspection  upon  request,  and  the  production 
of  which  is  necessary  to  enable  him  to  declare  against  the  defend- 
ant, the  court  or  a  judge  at  chambers  may  grant  him  a  rule  on  the 
defendant  to  produce  the  document,  or  give  him  a  copy  for  that 
purpose.  Such  order  may  also  be  obtained  by  the  defendant  on  a 
special  case,  such  as,  if  there  is  reason  to  suspect  that  the  document 
is  forged,  and  the  defendant  wishes  that  it  may  be  seen  by  himself 
and  his  witnesses.  But  in  all  such  cases  the  application  should  be 
supported  by  the  affidavit  of  the  party,  particularly  stating  the  cir- 
cumstances.1 

§  400.  Notice  not  required,  when. 

The  notice  is  not  required:  1st.  "Where  the  instrument  to  be 
proved  is  itself  a  notice,  such  as  a  notice  of  the  dishonor  of  a  bill.2 
2d.  "Where  the  instrument  to  be  produced,  and  that  to  be  proved, 
are  duplicate  originals.3  3d.  Where,  from  the  nature  of  the  action 
or  pleadings,  the  party  has  notice  that  his  adversary  intends  to 
charge  him  with  the  possession  of  the  instrument.4  Where  the  de- 
fendant claimed  a  credit  for  a  draft,  which  had  been  drawn  by  a 
third  person  on  the  plaintiff,  in  favor  of  the  defendant,  and  by  him 
passed  over  to  the  plaintiff,  with  the  understanding  that  it  was  to 
be  placed  to  the  defendant's  credit,  it  was  held  that  in  the  absence 
of  any  allegation  in  the  answer  that  the  draft  had  been  thus  passed 
over  to  the  plaintiff,  the  latter  ought  to  have  been  notified  to  pro- 
duce it,  in  order  to  authorize  the  admission  of  secondary  evidence 

perintendent,  and  notice  to  produce  had  been  served  upon  defendant.  The 
predicate  was  held  sufficient  to  admit  secondary  evidence  of  the  contents  of 
such  paper  or  list.  Behee  v.  Missouri  Pac.  Ry.  Co.,  71  T.  424  (9  S.  W.  Eep.  449). 

Where  defendant  voluntarily  produces  a  paper,  and  it  is  used  in  evidence  by 
plaintiff,  but  without  being  marked  "  filed,"  it  is  not  error  on  a  second  trial  of 
the  case  to  compel  defendant  to  produce  it.  Boothe  v.  Feist,  19  S.  W.  Eep.  398. 

1 1  GreenL  Ev.,  §  559. 

2 1  Greenl.  Ev.,  §  561. 

8  Dean  v.  Border,  15  T.  298. 

*  Hamilton  v.  Rice,  15  T.  382;  Cheatham  v.  Kiddle,  8  T.  162;  Reliance  L.  Co.  v, 
"W.  U.  TeL  Co.,  58  T.  39i 


§  401.]  NOTICE  TO  PRODUCE  PAPERS.  387 

thereof.1  A  demand  before  suit  brought,  for  the  delivery  up  of  an 
instrument  of  writing,  is  not  sufficient  ground  to  authorize  the  in- 
troduction of  parol  evidence  of  the  contents  of  such  instrument, 
without  notice  to  produce,  notwithstanding  that  the  suit  is  based 
on  such  refusal.2 

In  a  suit  against  a  telegraph  company  for  damages  resulting  from 
alleged  failure  to  deliver  a  telegraphic  message  intrusted  to  the 
company,  parol  evidence  of  the  contents  of  the  message  may  be  re- 
sorted to  by  the  plaintiff  to  establish  the  contents  of  the  message, 
and  this  without  the  necessity  of  first  giving  the  defendant  notice 
to  produce  the  written  message.3  In  an  action  against  a  telegraph 
company  for  failure  to  deliver  a  message  received  by  it  by  way  of 
another  telegraph  company,  the  message  which  it  failed  to  deliver 
is  admissible  as  original  evidence,  though  the  original  message  of 
the  sender  is  in  the  possession  of  the  other  telegraph  company.4 

§  401.  Form  and  service  of  notice. 

The  notice  should  be  sufficiently  explicit  to  apprise  the  party  of 
the  paper  required,  and  should  be  served  in  sufficient  time  to  allow 
him  to  produce  it.  What  is  a  reasonable  time  depends  upon  cir- 
cumstances, and  must  be  left  to  the  sound  discretion  of  the  court 
to  determine.  The  notice  may  be  directed  to  the  party  or  to  his 
attorney,  and  may  be  served  on  either,  and  should  generally  be 
served  before  the  commencement  of  the  trial.5  If  the  notice  is 
sufficiently  certain  to  avoid  misleading  the  party  it  will  be  held 
good,  though  it  be  inartificially  drawn.6  Where  a  party  does  not 
object  to  the  notice  to  produce  a  deed  for  the  want  of  time  to  ena- 
ble him  to  do  so,  but  merely  because  of  the  distance  at  which  he 
lived  from  the  place  where  the  court  was  sitting,  he  cannot  object 
to  the  introduction  of  a  copy.7 

1  Dean  v.  Border,  15  T.  298. 

2  Miller  v.  Hoyt,  14  T.  49. 

'Reliance  L.  Co.  v.  W.  U.  TeL  Co.,  58  T.  894 
<  W.  U.  Tel.  Co.  v.  Smith,  26  S.  W.  Rep.  216. 
61  Greenl.  Ev.,  §  562;  L  &  G.  N.  Ry.  Co.  v.  Donalson,  2  App.  C.  C.,  §  241. 

6  L  &  G.  N.  Ry.  Co.  v.  Donalson,  2  App.  C.  C.,  §  241.    The  notice  in  this  case, 
by  plaintiffs,  OK  W.  Donalson  &  Co.,  was  as  follows,  and  was  held  sufficient: 
44  G.  W.  Donalson  &  Co.,  at  different  times,  from  time  to  time,  since  the  date  of 
the  19th  of  December,  1880,  and  prior  to  the  date  of  the  institution  of  this  suit. 
placed  in  the  hands  of  defendant  sundry  bills  of  lading,  and  sundry  bills  of  in- 
voice, to  be  referred  to  by  defendant  for  information  bearing  upon  the  subject- 
matter  of  this  suit,  which  said  papers  said  defendant  has  never  returned  to  said 
plaintiffs;  and  said  plaintiffs  hereby  request  of  said  defendant  to  produce  upon 
the  trial  of  said  case,  in  open  court,  each,  and  all,  and  every,  such  bill  of  lading, 
and  bill  of  invoice  whatsoever,  received  by  said  defendant  from  said  plaintiffs 
at  any  time  subsequent  to  the  date  of  the  19th  day  of  December,  1880,  and  prior 
to  the  date  of  May  16,  1883." 

7  Gainer  v.  Cotton,  49  T.  10L    See  Hamilton  v.  Rice,  15  T.  382;  Newsom  v. 
Davis,  20  T.  419. 


388  NOTICE  TO  PEODUCE  PAPERS.  [§  402. 

§  402.  Effect  of  producing  the  paper. 

If  the  paper  is  produced  pursuant  to  the  notice,  the  act  of  pro- 
ducing is  prima  facie  evidence  of  its  execution,  if  the  party  pro- 
ducing be  a  party  to  it,  or  claim  any  right  or  interest  under  it ; 
otherwise  it  must  be  proved  in  the  usual  manner.1  The  proper 
time  for  producing  the  paper  is  when  the  opposite  party  has  entered 
upon  his  case  and  calls  for  the  production.2  If  one  party  calls  for 
papers  in  the  possession  of  the  other,  but,  when  they  are  produced, 
declines  using  them,  the  mere  calling  for  them  will  not  make  them 
evidence  for  the  adverse  party.3  If  the  paper  is  withheld,  after 
notice  to  produce  it,  and  it  is  shown  or  admitted  to  be  in  the  pos- 
session of  the  party,  secondary  or  parol  proof  of  its  contents  may 
be  given ;  and  if  such  secondary  evidence  is  imperfect,  vague  and 
uncertain  as  to  dates,  sums,  boundaries,  etc.,  every  intendment  and 
presumption  will  be  against  the  party  who  might  remove  all  doubt 
by  producing  the  higher  evidence.4 

1 1  Phil.  Ev.  450. 

2 1  Greenl.  Ev.,  §  563. 

3 1  Greenl.  Ev.,  §  563.  The  production  of  papers  upon  notice  does  not  make 
them  evidence  in  the  case,  unless  the  party  giving  the  notice  inspects  them,  so 
as  to  become  acquainted  with  their  contents.  Saunders  v.  Duval,  19  T.  467.  A 
plaintiff  who  has  made  affidavit  of  the  loss  of  an  original  instrument  under 
which  he  claims  is  not  bound  to  receive  a  paper  tendered  him  by  the  defendant 
as  such  original,  but  may  produce  parol  evidence  of  its  execution  and  contents. 
Hill  v.  Townsend,  24  T.  575. 

4  Bailey  v.  Hicks,  16  T.  222;  Thompson  v.  Shannon,  9  T.  536. 


CHAPTER  XXII. 


CONTINUANCE  OF  A  CAUSE. 


403.  Application,  when  made;  when 

granted. 
404  First  application,  requisites  of. 

405.  Second  and  subsequent  applica- 

tions. 

406.  Whether  an  application  is  first 

or  second,  etc. 

407.  Court  not  held  or  business  not 

disposed  of. 

408.  Miscellaneous    provisions;    sur- 

prise by  rulings. 

409.  Surprise  caused  by  supplement 

or  amendment  to  pleading. 

410.  Time  of  making  application. 

411.  On  the  character  of  the  plead- 

ings. 

412.  Postponement  to  future  day  of 

term. 

413.  Discretion  in  granting  and  re- 

fusing continuances;  statutory 
applications. 

414  Diligence,  how  stated. 

415.  Probability  of  procuring  the  evi- 
dence. 


416.  A  party  must  not  delay  the  prep- 

aration of  his  case. 

417.  Excusing  want  of  diligence. 

418.  Materiality  of  absent  testimony. 

419.  Efforts  to  discover  materiality 

of  testimony. 

420.  Statement  of  testimony  of  ab- 

sent witness. 

421.  Process  for  witnesses. 

422.  Whether  witness  fees  should  be 

paid  or  tendered. 

423.  Diligence  in  taking  depositions. 

424.  Testimony  not  obtainable  from 

any  other  source. 

425.  Name  and  residence  of  witness. 

426.  Absence  of  counsel 

427.  Matters  of  practice. 

428.  Requisites  of  application. 

429.  Attorney  or  agent  may  make  af- 

fidavit 

430.  Counter-affidavits. 

431.  Motion  defeated  by  admission  of 

facts. 

432.  Granted  on  terms. 

433.  Exceptions  to  rulings. 


§  403.  Application,  when  made;  when  granted. 

An  application  for  a  continuance  will  not  be  heard  before  the 
defendant  files  his  defense,  and  then  only  for  sufficient  cause,  sup- 
ported by  affidavit,  or  by  consent  of  the  parties,  or  by  operation 
of  law.1 

Where  a  sheriff  or  constable,  or  deputy  of  either,  has  taken  in- 
demnifying bonds  and  is  sued  for  damages  for  his  official  acts,  he 
may  make  the  principal  and  sureties  in  such  bonds  parties  defend- 
ant, and  has  a  right  to  a  continuance  to  obtain  service  upon  them.2 

1  R  S.  1276. 

2  R  S.  1204.    The  officer  is  entitled  as  a  matter  of  right  to  have  the  cause  con- 
tinued for  a  term  to  make  those  who  contracted  to  indemnify  him  parties.   The 
fact  that  such  an  indemnifying  bond  was  executed  must  !>«>  satisfactorily  shown 
to  the  court  before  the  continuance  to  make  parties  can  be  granted  as  a  matter 
of  right.    It  will,  on  appeal,  be  presumed,  from  an  order  entered  by  the  district 


390  CONTINUANCE   OF   A   CAUSE.  [§§  404-406. 

"Where  there  are  several  defendants  in  a  suit  and  some  are  not 
served  with  process,  plaintiff  may  have  a  continuance  to  the  next 
term  and  may  take  new  process  for  the  defendants  not  served.1 

§  404.  First  application,  requisites  of. 

On  the  first  application  for  a  continuance,  if  the  ground  of  the 
application  be  the  want  of  testimony,  the  party  applying  therefor 
must  make  affidavit  that  such  testimony  is  material,  and  that  he 
has  used  due  diligence  to  procure  the  same,  stating  such  diligence.2 
Argument  will  not  be  heard  on  a  first  application.3 

§  405.  Second  and  subsequent  applications. 

On  the  second  or  any  subsequent  application  for  a  continuance, 
if  the  ground  of  such  application  be  the  want  of  testimony,  the 
party  applying  therefor  must  make  affidavit  that  such  testimony  is 
material,  showing  the  materiality  thereof,  and  that  he  has  used  due 
diligence  to  procure  such  testimony,  stating  such  diligence,  and  the 
cause  of  failure  if  known;  that  such  testimony  cannot  be  obtained 
from  any  other  source;  and  if  it  be  for  the  absence  of  a  witness,  he 
must  state  the  name  and  residence  of  the  witness,  and  what  he  ex- 
pects to  prove  by  him;  and  he  must  also  state  that  the  continuance 
is  not  sought  for  delay  only,  but  that  justice  may  be  done.4 

§  406.  Whether  an  application  is  first  or  second,  etc. 

In  determining  whether  an  application  is  the  first,  second,  or  a 
subsequent  one,  the  court  must  look  to  the  entire  record,  and  not 
merely  to  the  action  had  in  the  case  after  it  is  remanded  by  the  ap- 
pellate court  for  a  new  trial.  This  rule  is  adhered  to,  notwithstand- 
ing it  may  often  require  as  much  or  more  time  to  prepare  for  the 
new  trial  than  was  required  for  preparation  in  the  first  instance; 
but  where  this  is  made  to  appear,  due  consideration  should  be  given 
it  by  the  court,  in  determining  the  sufficiency  of  the  application.5 
Previous  continuances  in  the  justice's  court  are  counted  when  an 
application  is  made  after  appeal  to  the  county  court.6  It  is  not  re- 
quired that  the  application  should  state  specifically  that  it  is  a  first 
or  a  second  one.  It  is  sufficient  if  it  be  shown  by  the  bill  of  excep- 
tions to  the  ruling  of  the  court.7 

judge  granting  the  sheriff  leave  to  make  the  persons  parties  defendant  who 
were  sureties  on  the  indemnifying  bond,  that  the  district  judge  had  become 
satisfied  that  such  persons  had  executed  the  bond;  and  it  was  error  to  refuse  a 
continuance  to  a  subsequent  day  of  the  term,  to  have  citation  on  such  sureties, 
when  applied  for  by  the  sheriff.  Rains  v.  Herring,  68  T.  468  (5  S.  W.  Rep.  368). 

1  R  S.  1256. 

2  R.  S.  1277. 
8  Rule  35. 
4R.  S.  1278. 

5McMichael  v.  Truehart,  48  T.  216. 

6  Heidenheimer  v.  Bledsoe,  1  App.  C.  C.,  §  318. 

"Earth  v.  Jester,  3  App.  C.  C.,  g  222. 


§§  407,  408.]  CONl'IM  ANCE    OF    A    CAUSE.  391 

£  407.  Court  not  held  or  business*  not  disposed  of. 

If  from  any  cause  the  court  shall  not  be  held  at  the  time  pre- 
scribed by  law,  or  if  the  business  before  the  court  be  not  determined 
before  the  adjournment  thereof,  such  business,  of  whatsoever  nature, 
remaining  undetermined,  will  stand  continued  until  the  next  suc- 
MU'  term  of  the  court.1  Where  the  district  or  county  judge 
fails  tit  appear  at  the  time  appointed  for  holding  court,  and  no  spe- 
cial judge  is  elected,  the  sheriff,  or  in  his  default  a  constable  of  the 
county,  must  adjourn  court  from  day  to  day  for  three  days,  and  if 
the  district  judge  fails  to  appear  on  the  morning  of  the  fourth  day, 
or  the  county  judge  fails  to  appear  on  the  fourth  day,  the  sheriff  or 
constable  is  directed  to  adjourn  the  court  until  the  next  regular  term.2 

?  408.  Miscellaneous  provisions;  surprise  by  rulings. 

Motions  may  be  continued  by  consent  to  the  next  term  of  court.8 
But  motions  for  new  trials,  in  arrest  of  judgment,  or  to  set  aside  a 
judgment,  must  be  determined  at  the  term  of  the  court  at  which 
they  are  made;4  they  may  be  postponed,  but  not  to  a  day  later 
than  two  entire  days  before  the  adjournment  of  the  court.5 

Where  parties  to  a  suit  set  the  case  for  trial  for  a  day  when  by 
the  orders  of  the  court  no  jury  will  be  in  attendance,  the  absence 
of  a  jury  will  not  be  a  reason  for  the  continuance  of  the  case.  Liti- 
irants  are  chargeable  with  knowledge  of  the  standing  orders  of  the 
court.6  To  grant  a  continuance  of  a  cause  because  during  the 
progress  of  the  trial  evidence  was  excluded  without  which  the 
party  could  not  maintain  his  suit,  the  exclusion  of  which  was  re- 
quired by  the  well-settled  law  of  evidence  would  be  in  violation  of 
established  practice.  Nor  under  such  circumstances  should  the 
party  obtain  a  new  trial  on  the  ground  of  surprise.7 

i  R.  S.  1279. 

^RS.  1119,  1169. 

3  Rule  22. 

-•  R.  S.  1374. 

*  Rule  71. 

*Cole  v.  Terrell,  71  T.  549  (9  S.  W.  Rep.  668). 

"Read  v.  Allen,  63  T.  154.  A  party  sought  a  continuance  on  the  sole  ground 
that  another  action  was  pending  on  appeal  in  the  supreme  court  between  him- 
self and  others,  which  involved  questions,  the  decision  of  which,  he  claimed, 
\v..\iM  be  decisive  of  the  questions  raised  in  this,  but  this  was  held  not  a  suffi- 
cient ground.  Cates  v.  Mayes,  12  S.  W.  Rep.  51. 

After  the  order  refusing  to  set  aside  an  order  for  severance,  the  plaintiffs 
'moved  for  a  continuance  on  the  ground  of  surprise  caused  by  the  ruling,  and 
the  further  reason  that  a  cause  was  undisposed  of  on  appeal  in  which  plaintiffs 
litigatetl  with  another  owner  of  a  tract  separate  from  that  in  controversy.  It 
was  In-Ill  that  the  application  showed  no  grounds  for  continuance.  Grigsby  v. 
May.  M  T.  vMo  i  in  S.  \V.  Kep.  343).  A  purchaser  pendente  lite  who  intervenes  in 
the  cause  is  not  entitled,  on  the  ground  that  he  is  a  necessary  party,  to  claim 
any  better  attitude  in  the  case  than  any  other  intervenes  He  has  no  right  to 
.a  continuance  of  the  cause.  Edwards  v.  Norton,  55  T.  405. 


392  CONTINUANCE   OF   A   CAUSE.  [§  409; 

Where  an  action  or  defense  is  founded  on  an  open  account,  veri- 
fied by  affidavit,  if  the  adverse  party  files  a  counter-affidavit  on  the 
day  of  trial,  this  will  entitle  the  party  claiming  under  the  account 
to  a  continuance  to  the  next  term.1 

§  409.  Surprise  caused  by  supplement  or  amendment  to  pleading. 

The  rules  provide  that  "  when  either  supplement  or  amendment 
made  to  pleading  is  of  such  character  and  is  presented  at  such  time 
as  to  take  the  opposite  party  by  surprise  (to  be  judged  of  by  the 
court),  it  shall  be  cause  for  imposing  the  cost  of  the  term  upon  and 
charging  the  continuance  of  the  cause  (both  or  either)  to  the  party 
causing  the  surprise,  if  the  other  party  demand  it  and  shall  make  a 
satisfactory  showing,  or  if  it  otherwise  be  apparent  that  he  is  not 
ready  for  trial  on  account  of  said  supplement  or  amendment  being 
allowed  to  be  filed  by  the  court.2 

Upon  the  coming  in  of  an  amendment  presenting  new  issues,  th& 
party  who  claims  surprise  is  not  entitled  to  a  continuance  as  a  mat- 
ter of  absolute  right.  If  the  court  be  satisfied  upon  sufficient 
grounds  that  there  is  no  surprise,  a  continuance  should  be  refused 
if  asked  on  account  of  such  amendment.3  The  courts  exercise  a  dis- 
cretion which  will  not  be  revised  when  it  can  be  seen  that  no  injury 
resulted.4  An  amended  petition  may  set  up  a  new  cause  of  action, 
and  still  the  question  of  continuance  is  largely  in  the  discretion  of 
the  court.  In  the  absence  of  an  affidavit  made  by  a  party  wha 
seeks  the  continuance  of  a  case  on  account  of  surprise,  when  his  ad- 
versary has  been  permitted  to  file  an  amended  pleading,  after  both 
parties  have  announced  themselves  ready  for  trial,  the  action  of  the 
court  in  refusing  the  continuance  will  not  be  revised,  unless  it  shall 
be  apparent  from  an  inspection  of  the  record  that  the  party  seek- 

*  R.  S.  2323. 

2  Rule  16:  Blum  v.  Mays,  1  App.  C.  C.,  §  476;  Cent.  &  Mont  R.  Co.  v.  Henning, 
52  T.  466;  Turner  v.  Lambeth,  2  T.  365. 

3  Beham  v.  Ohio,  75  T.  87  (12  S.  W.  Rep.  996). 

4  Lamb  v.  Temperance  Hall  Co.,  2  Civ.  App.  289  (21  S.  W.  Rep.  713):  Miller  v. 
Morris,  55  T.  412.     It  is  heM  that  an  amendment  introducing  new  matter  into 
the  petition  can  have  no  other  effect  than  to  work  a  continuance.    Turner  v. 
Lambeth,  2  T.  365. 

When  the  pleading  filed  by  the  plaintiff  which  is  claimed  to  have  operated  as 
a  surprise  to  the  defendant,  and  for  which  surprise  he  asks  a  continuance,  sets 
up  facts  which  the  plaintiff  would  have  been  entitled  to  prove  to  rebut  the  de- 
fendant's plea  of  contributory  negligence,  and  the  depositions  read  by  the  de- 
fendant show  that  it  was  not  taken  by  surprise,  the  motion  for  continuance  is 
rightly  overruled,  although  it  was  the  first  application.  Tex.  &  Pac.  Ry.  Co.  w 
Bagwell,  3  Civ.  App.  256  (22  S.  W.  Rep.  829).  The  original  petition  fixed  the  date 
of  the  injury,  on  account  of  which  damages  were  claimed,  on  the  fourth  of  the 
month;  an  amendment  filed  two  days  before  the  trial  gave  the  date  as  the  first, 
and  on  the  trial  the  plaintiff  testified  that  the  injury  happened  on  the  night  of 
the  seccnl  of  the  month.  Held,  that  defendant  was  not  entitled  to  a  continuance 
on  the  ground  of  surprise.  Tex.  &  Pac.  Ry.  Co.  v.  Cornelius,  30  S.  W.  Rep.  720^ 


§  410.]  CONTINUANCE   OF   A   CAUSE. 

ing  the  continuance  could  not  have  been  prepared  for  trial  because 
of  the  amendment.1  Where  the  amended  petition  operates  as  a 
surprise,  defendant  ought  to  show  by  affidavit  that  he  has  a  good 
defense,  and  that  the  amendment  has  made  necessary  the  procuring- 
of  other  witnesses.2 

In  a  suit  for  land  in  which  the  plaintiff  sets  out  his  title,  and  by 
amendment  changes  the  suit  into  a  simple  action  of  trespass  to  try 
title,  such  amendment,  by  enlarging  the  scope  of  the  admissible- 
evidence  of  title,  may  be  a  matter  of  surprise  to  the  defendant,  such 
as  to  entitle  him  to  a  continuance.  A  plaintiff  in  a  suit  for  the  re- 
covery of  real  estate,  who  has  specially  pleaded  his  title,  is  confined 
upon  the  trial  to  proof  of  the  title  so  pleaded ;  but  should  he  amend 
and  file  his  petition  in  the  statutory  form  he  may  prove  any  title 
under  which  he  claims.3 

If  an  amendment  will  work  a  continuance,  leave  to  file  it  must 
be  obtained  and  entered  of  record.4  If  it  is  not  shown  that  the 
applicant  is  not  as  fully  prepared  as  he  could  hope  to  be  at  a  sub- 
sequent day  of  the  term,  it  is  not  error  to  refuse  a  motion  to  post- 
pone.5 

§  41O.  Time  of  making  application. 

A  motion  for  a  continuance  should,  in  general,  be  made  before- 
the  party  has  announced  himself  ready  for  trial,  but  it  may  be  made 
after  such  announcement.  Where  a  party  is  surprised  by  the  unau- 
thorized withdrawal  of  his  witnesses  after  the  trial  has  commenced, 
he  should  then  apply  for  a  continuance  or  postponement  of  the 
trial.6  Where  a  party  had  announced  himself  ready  for  trial,  be- 
lieving that  his  written  testimony  was  on  file,  and  the  testimony 

i  T.  &  N.  O.  Ry.  Co.  v.  Goldberg,  68  T.  685  (5  S.  W.  Rep.  824). 

*Cummings  v.  Rice,  9  T.  527:  Fisk  v.  Miller,  13  T.  225.  A  general  demurrer 
filed  to  a  petition  on  a  fire  insurance  policy  for  failure  to  negative  the  idea  that 
the  loss  fell  within  special  exemptions  of  the  policy  was  overruled.  On  trial,  the 
court  sustained  objections  to  evidence  urged  on  the  same  ground,  but  allowed 
plaintiff  a  trial  amendment;  and  it  was  held  that  a  refusal  of  a  continuance  to- 
defendant  for  surprise  was  within  the  court's  discretion.  Alamo  Fire  Ins.  Co. 
v.  Shacklett,  26  S.  W.  Rep.  630. 

Where  a  petition  is  amended  by  more  particularly  describing  the  injuries  for 
which  the  suit  was  brought,  it  is  not  error  for  the  court  to  overrule  an  applica- 
tion by  defendant  for  a  continuance.  Tex.  Cent.  R.  Co.  v.  Williams,  26  S.  W. 
Rep.  856. 

s  Cunningham  v.  State,  74  T.  511  (12  S.  W.  Rep.  217).  Where,  more  than  two 
years  after  an  itemized  account  was  set  up  by  defendant  and  sworn  to,  the 
plaintiff  filed  his  affidavit  denying  its  correctness,  and  this  upon  the  eve  of  an- 
nouncing ready  for  trial,  a  continuance  of  the  cause  on  defendant's  application 
to  procure  testimony  rendered  necessary  by  the  plaintiff's  affidavit  should  have- 
been  granted.  Grimes  v.  Watkins,  59  T.  133. 

«  Haynes  v.  Rice,  33  T.  167. 

*  Johns  v.  Northcutt,  49  T.  445. 

«  Cotton  v.  State,  4  T.  260. 


394  CONTINUANCE   OF   A   CAUSE.  [§411. 

could  not  be  found,  it  was  held  that  he  should,  upon  discovering 
his  error,  have  moved  for  a  postponement  or  continuance;  and 
where  he  had  failed  to  do  so,  a  new  trial  was  refused.1 

When  an  important  witness  of  a  party  was  so  intoxicated  that 
he  was  unable  to  testify  as  clearly  as  he  otherwise  would  have  done, 
.and  the  party  failed  to  ask  for  a  continuance  when  the  inability  of 
the  witness  to  testify  was  discovered,  it  was  held  that  he  was  not 
entitled  to  a  new  trial  on  that  ground.3  The  continuance  of  a  case 
after  the  trial  has  begun,  on  account  of  the  withdrawal  of  a  mate- 
rial witness,  is  largely  within  the  discretion  of  the  court.3 

A  witness  for  plaintiff  made  statements  to  plaintiff  before  the 
trial  tending  to  show  a  different  state  of  facts  from  that  testified 
to  by  him.  When  this  was  discovered,  plaintiff  should  have  applied 
for  leave  to  withdraw  his  announcement  of  ready  for  trial,  and  to 
•continue  the  case.  Having  proceeded  with  the  trial  and  taken  the 
chances  of  a  judgment,  he  cannot  complain.4 

§  411.  On  the  character  of  the  pleadings. 

The  application  will  not  be  heard  until  the  defendant  files  his 
•defense' 5  and  it  is  held  that  a  continuance  will  not  be  granted  to 
obtain  evidence  to  support  an  answer  which,  if  proved  true,  would 
be  no  defense  to  the  action.6  It  has  been  held,  also,  that  although  a 
general  denial  is  an  answer,  it  can  only  be  said  to  be  a  "defense" 
so  far  as  to  put  the  plaintiff  upon  proof  of  his  case ;  and  in  an  action 
on  a  promissory  note,  where  the  only  answer  filed  by  the  defendant 
was  a  general  demurrer  and  a  general  denial,  it  was  held  not  error 

1  Linard  v.  Crossland,  10  T.  462. 

2  LandV  Miller,  7  T.  463. 

3  Wiggins  v.  Fleishel,  50  T.  57;  Kelly  v.  Belcher.  1  App.  C.  C.,  §  1126.    An  ap- 
plication for  the  continuance  of  a  cause,  made  on  a  day  of  the  term  for  which 
"the  cause  had  been  set  for  trial,  after  a  former  application  during  the  term  had 
been  refused,  cannot  be  regarded  as  a  first  or  a  second  application  under  the 
statute,  but  is  addressed  to  the  sound  discretion  of  the  court  outside  of  fixed 
rules;  and  the  action  of  the  ccurt  thereon  will  not  be  reversed  unless  there  has 
been  a  manifest  abuse  of  discretionary  power.    Due  diligence  was  not  shown 

*  when  no  effort  was  made  to  procure  the  testimony  of  a  witness  by  deposition 
until  during  the  term,  and  after  the  first  application  for  continuance  was  over- 
ruled. Hunt  v.  Makemson,  56  T.  9. 

After  plaintiff  had  introduced  his  evidence,  defendant  was  permitted  to  with- 
draw his  announcement  of  ready  for  trial  and  take  a  continuance  for  the  pur- 
pose of  procuring  evidence.  This  was  held  no  ground  for  reversal  of  a  judgment 
rendered  on  a  subsequent  trial  on  the  merits.  Daniels  v.  Creekmore,  7  Civ.  App. 
-573  (27  S.  W.  Rep.  148).  After  answer  filed  and  no  diligence  shown,  it  is  not 
•error  to  overrule  application  for  continuance  for  non -joinder  of  parties;  at  this 
stage  of  the  case  such  a  proceeding  is  too  late.  Ryall  v.  Griffin,  2  U.  C.  680. 

« Gregory  v.  Railway  Co.,  2  Civ.  App.  279  (21  S.  W.  Rep.  417). 

5  R.  S.  1276. 

6  Claiborne  v.  Yoeman,  15  T.  44;  Alexander  v.  Brown,  29  S.  W.  Rep.  561;  White 
v.  Waco  Bldg.  Ass'n,  31  S.  W.  Rep.  58. 


1 2,  413.]  CONTINUANCE   OF   A   CAUSE.  395 

to  refuse  the  defendant  a  continuance,  although  his  affidavit  was  in 
compliance  with  the  statute  in  showing  the  absence  of  a  material 
witness,  the  exercise  of  due  diligence,  etc.1  It  is  held  in  other  cases 
that  the  rule  as  here  stated  is  limited  to  cases  in  which  the  general 
denial  constitutes  no  defense.  Where,  under  a  general  denial,  the 
defendant  would  be  allowed  to  introduce  rebutting  evidence,  it  is 
sufficient  to  authorize  the  consideration  of  an  application  for  con- 
tinuance.2 

'.12.  Postponement  to  future  day  of  term. 

An  application  to  postpone  the  trial  of  a  case  on  the  civil  docket 
to  a  future  day  in  the  term  is  under  the  discretion  of  the  court  and 
the  ruling  will  not  be  revised  on  appeal.3  The  statute  now  in  force 
recognizes  the  power  of  the  court  to  rquire  a  cause  to  be  tried  out 
of  its  order,  without  reference  to  the  consent  of  parties.4  The  ex- 
ercise of  this  power  may  be  revised,  but  it  is  incumbent  on  the 
party  seeking  a  revision  of  the  ruling  of  the  court  to  show  that  he 
was  injured.*  The  court  may  exercise  a  discretion  in  refusing  to 
postpone  a  case  when  it  is  called  for  trial  to  enable  a  party  to  apply 
for  a  continuance.6  An  application  pending  the  trial  to  withdraw 
the  announcement  and  to  postpone  the  case  is  addressed  to  the  dis- 
cretion of  the  court,  and  the  ruling  will  not  be  revised  unless  clearly 
erroneous.7 

£413.  Discretion  in  granting  and  refusing  continuances;  statutory 
applications. 

The  courts  exercise  a  discretion  in  granting  and  refusing  continu- 
ances, but  a  legal  or  judicial  discretion  is  intended,  and  not  the 
exercise  of  the  mere  arbitrary  will  or  caprice  of  the  judge.  Absolute 
discretion  is  tyranny,  and  the  recognized  doctrine  now  is  that  the 
courts  exercise  a  discretion  with  due  regard  to  fixed  rules  and  prece- 
dents. The  refusal  in  a  proper  case  to  administer  to  a  party  the 
benefits  of  a  rule  of  law  on  which  security  in  his  rights  of  property 

1  Fowler  v.  Buckner.  23  T.  84;  Titus  v.  Crittenden,  8  T.  139;  White  v.  Waco 
Bldg.  Ass'n.  31  S.  W.  Rep.  58. 

2  Tex.  Trans.  Co.  v.  Hyatt.  54  T.  213;  Lyon  v.  Stevens,  35  T.  439. 

'  Mayer  v.  Duke,  72  T.  445  (10  a  W.  Rep.  565);  Capt  v.  Stubbs,  68  T.  222  (4  &  W. 
Rep.  467). 

*  R.  S.  1287,  1288. 

«  Ma  Pac.  Ry.  Co.  v.  Shuford,  72  T.  165  (10  S.  W.  Rep.  408). 

5Addington  v.  Bryson,  1  App.  C.  C.,  §  1292. 

"Dempsey  v.  Taylor,  4  Civ.  App.  126  (23  S.  W.  Rep.  220).  Where  a  witness 
called  by  defendant  was  expected  to  prove  the  execution  of  a  deed  for  the  land 
in  controversy,  the  witness  not  so  testifying,  the  defendant,  in  asking  a  post- 
ponement, should  have  shown  the  connection  of  the  deed  with  the  defense,  and 
the  importance  of  the  testimony,  and  that  it  could  not  be  supplied  by  other  tes- 
timony. In  absence  of  such  showing  the  refusal  of  the  court  to  suspend  the 
trial  was  no  ground  for  reversal. 


396  ''  CONTINUANCE    OF   A   CAUSE.  [§  413. 

depends,  even  where  a  legal  discretion  is  confided  to  the  judge  as 
to  when  the  rule  may  be  invoked,  and  the  refusal  of  an  appel- 
late court  to  revise  and  correct  an  abuse  of  such  discretion,  would 
amount,  in  effect,  to  the  substitution  of  an  unregulated,  and,  as  it 
might  be,  capricious  and  despotic,  discretion  in  name,  but  mere  per- 
sonal will  in  fact,  for  the  "  law  of  the  land." l  So  it  may  be  stated 
as  a  rule  of  law,  that  the  ruling  of  the  lower  court  in  refusing  a 
continuance  may  be  revised,  if  there  be  any  known  rules  or  fixed 
principles  applicable  to  the  facts  of  the  case.2 

When  a  first  or  second  application  conforms  to  the  requirements 
of  the  statute,  the  continuance  must  be  granted ;  it  is  ordinarily 
error  to  refuse  it.3  The  proposition  has  been  frequently  announced,, 
to  the  effect  that  if  an  affidavit  for  a  first  or  a  second  continuance 
complies  with  the  requirements  of  the  statute,  it  relieves  the  court 
of  all  discretion  in  the  matter.4 

i  Watts  v.  Holland,  56  T.  54. 

^  Ward  v.  Boon,  Dallam,  561;  Peck  v.  Moody,  33  T.  84;  Fuller  v.  Craddock, 
Dallam,  458;  Hipp  v.  Huckett,  4  T.  20;  Hipp  v.  Bissell,  3  T.  18;  Tex.  &  Pac.  Ry. 
Co.  v.  Hardin,  62  T.  367. 

a  Doll  v.  Kundine,  84  T.  315  (19  S.  W.  Rep.  394);  City  of  Corsicana  v.  Kerr,  75 
T.  207  (12  S.  W.  Rep.  982);  Cleveland  v.  Cole,  65  T.  402;  Chilson  v.  Reeves,  29  T. 
275;  Prewitt  v.  Everett,  10  T.  283:  Goodson  v.  Johnson,  35  T.  622;  Earth  v.  Jester, 
3  App.  C.  C.,  J5  222:  Tex.  &  Pac.  Ry.  Co.  v.  Watson,  3  App.  C.  C.,  §  302;  G.,  C.  & 
S.  F.  Ry.  Co.  v.  Sebastian,  3  App.  C.  C.,  §  393. 

4  Goodson  v.  Johnson,  35  T.  622.  Reference  to  a  few  cases  will  be  made  to 
illustrate  the  application  of  the  rule.  In  Doll  v.  Mundine,  84  T.  315  (19  S.  W. 
Rep.  394;  7  Civ.  App.  96),  objection  was  made  that  the  application  did  not  with 
sufficient  certainty  show  that  the  witnesses  were  absent,  and  it  was  held  that 
the  averments  were  sufficient,  and  that  the  affidavit  was  in  accordance  with 
the  statute.  In  Cleveland  v.  Cole,  65  T.  402,  the  application  as  for  a  first  con- 
tinuance is  set  out,  and  is  said  to  be  in  strict  compliance  with  the  statute,  with- 
out further  comment.  The  application  states  that  the  desired  evidence  is 
material,  that  due  diligence  has  been  used  to  obtain  it,  in  issuing  a  subpoena, 
etc.  Of  course  the  court,  in  determining  the  sufficiency  of  the  application,  con- 
sidered whether  the  diligence  stated  was  due  diligence.  In  Goodson  v.  John- 
son, 35  T.  622,  the  rule  is  announced,  with  an  express  finding  by  the  court  that 
the  diligence  set  out  in  the  affidavit  was  sufficient.  It  is  nowhere  stated  that 
an  affidavit  containing  simply  the  statements  required  by  the  statute  will  neces- 
sarily, on  its  face,  entitle  the  applicant  to  a  continuance.  The  application  may 
contain  in  clear  and  express  terms  every  statement  required,  and  may  still  be 
refused,  because  the  court  may  find  that  the  desired  evidence  is  not  material 
(Price  v.  Lauve,  49  T.  74),  or  that  the  diligence  used  is  not  due  diligence,  etc. 

The  applicant,  on  a  first  application,  must  state  that  the  desired  evidence  is 
material,  but  he  need  not  state  the  facts  showing  its  materiality.  But  he  must 
go  further  and  state,  not  only  that  he  has  used  due  diligence  to  procure  the  tes- 
timony, but  the  facts  showing  the  diligence  used.  And  the  courts  determine 
whether  the  diligence  stated  isdue  diligence  or  not,  and  grant  or  refuse  the  con- 
tinuance accordingly.  See  Campion  v.  Angier,  16  T.  93;  City  of  Corsicana  v^ 
Kerr,  75  T.  207;  G.,  C.  &  S.  F.  Ry.  Co.  v.  Wheat,  68  T.  133;  McFaddin  v.  Preston, 
54  T.  403.  The  facts  showing  diligence  must  be  stated,  and  not  mere  legal  con- 
clusions, so  that  the  court  may  determine  whether  due  diligence  has  been  used 
(Mo.  Pac.  Ry.  Co.  v.  Aiken,  71  T.  373),  and  if  the  facts  stated  do  not  show  the  use 


§  4:13.]  CON  TIM  'ANTE    OF    A    CAUSE.  397 

It  is  also  stated  th;it  an  application  not  in  compliance  with  the 
terms  of  the  statute  is  addressed  to  the  discretion  of  the  court;  but 
the  discretion  here  intended  is  also  a  legal  discretion.  The  ruling 
will  be  revised  if  injustice  be  done.1  So,  also,  as  to  third  applica- 
tions.2 Frequently  it  is  announced  that  a  reversal  cannot  be  had, 
because  no  injury  resulted  from  the  action  of  the  court.3 

Where  it  appears  that  the  witness  whose  testimony  is  desired  is 
in  the  penitentiary  on  conviction  for  a  felony,  and  there  is  nothing 

of  proper  diligence,  the  application  should  be  refused.    Falls  L.  &  C.  Co.  v.  Chis- 
holm,  71  T.  523  (9  S.  W.  Rep.  479). 

From  the  following  extract  there  would  seem  to  be  a  difference  between 
due  or  sufficient  diligence  and  statutory  diligence:  "The  statute  requires  that 
on  the  first  application  for  a  continuance  the  party  applying  therefor  shall 
make  affidavit,  among  other  things,  that  he  has  used  due  diligence  to  procure 
the  testimony  of  absent  witnesses,  stating  the  diligence  used.  It  is  not  sufficient 
to  state  the  diligence  without  also  stating  that  it  was  due  or  sufficient  diligence. 
The  party  may  be  able  to  state  that  statutory  diligence  was  used,  and  yet,  as  in 
this  case,  refuse  to  swear  that  it  was  sufficient.  Facts  may  exist  within  the 
knowledge  of  the  affiant  that  would  restrain  him  from  making  oath  that  due 
diligence  had  been  used,  when  he  could  promptly  swear  that  the  ordinary  statu- 
tory diligence  had  been  used.  It  would  not  be  required  that  such  facts  be  spe- 
cifically negatived  in  the  first  application  as  in  the  second,  and  yet  they  would 
be  denied  by  the  general  affirmation  that  due  diligence  had  been  used.  The  re- 
fusal of  the  party  to  make  oath  to  the  fact  in  this  case  illustrates  the  meaning 
of  the  statute."  St.  L.  &  S.  F.  Ry.  Co.  v.  Woolum,  84  T.  570  (19  S.  W.  Rep.  782). 

1  Allyn  v.  Willis,  65  T.  65;  Guy  v.  Metcalf,  83  T.  37  (18  S.  W.  Rep.  419);  Chilson 
v.  Reeves,  29  T.  275;  Baldessore  v.  Stephanes,  27  T.  455;  McMahon  v.  Busby,  29  T. 
191 :  Lewis  v.  Williams,  15  T.  47;  Byrne  v.  Jackson.  29  T.  95.    In  Guy  v.  Metcalf, 
83  T.  37  (18  S.  W.  Rep.  419),  an  application  not  stating  the  name  and  residence 
of  the  witness  was  held  not  a  statutory  application,  and,  therefore,  addressed  to 
the  sound  discretion  of  the  court.    See  Stanley  v.  Epperson,  45  T.  645,  for  an  ap- 
plication not  statutory,  in  that  it  failed  either  to  allege  due  diligence  or  to  state 
the  facts  constituting  diligence.    It  is  held  that  a  refusal  in  such  a  case  is  not 
error,  unless  it  appears  that  the  desired  testimony  was  material  for  the  attain- 
ment of  the  ends  of  justice.    In  Price  v.  Lauve,  49  T.  74,  the  application, 
stated  that  the  desired  evidence  was  material,  and  it  was  held  that  if  it  had 
stopped  there  it  would  have  been  a  statutory  application;  but  that  as  it  went 
further,  and  recited  the  facts  known  to  the  witness,  the  court  was  enabled  to 
judge  of  the  materiality  of  the  evidence,  and  the  application  ceased  to  be  a  stat- 
utory application  for  a  first  continuance. 

2  Green  v.  Crow,  17  T.  180;  Brooks  v.  Howard,  30  T.  278;  Burrell  v.  State,  18  T. 
713;  Prewitt  v.  Everett,  10  T.  283;  Hipp  v.  Huckett,  4  T.  20. 

'Crouch  v.  Johnson,  7  Civ.  App.  435  (27  S.  W.  Rep.  9);  Coleman  v.  Beardslee, 
16  S.  W.  Rep.  1011;  Tex.  &  Pac.  Ry.  Co.  v.  Hall,  83  T.  675  (19  S.  W.  Rep.  121).  In 
trespass  to  try  title,  the  refusal  of  the  court  to  continue  the  case  and  order  a 
survey  is  not  error?  where  there  is  nothing  in  the  record  to  show  that  the  party 
was  injured  by  the  ruling;  it  will  not  be  presumed  that  the  application  was  the 
first  one.  Coleman  v.  Beardslee,  16  S.  W.  Rep.  1011.  Considering  an  application 
for  continuance  which  failed  to  show  whether  it  is  for  a  first,  second  or  subse- 
quent continuance,  it  would  be  necessary  for  the  court  on  appeal  to  be  satisfied 
that,  when  treated  as  either,  it  shows  that  the  refusal  of  the  continuance  was  a 
wrong,  before  being  considered  ground  for  reversal.  Tex.  &  Pac.  Ry.  Co.  v.  Hall, 
83  T.  675  (19  S.  W.  Rep.  121). 


398  CONTINUANCE   OF   A   CAUSE.  [§§  414,  415, 

to  show  that  his  disability  can  be  removed,  the  continuance  is  prop- 
erly refused.1 

§  414.  Diligence,  how  stated. 

In  all  cases  it  must  be  stated  that  due  diligence  has  been  used  to 
obtain  absent  testimony,  and  the  diligence  used  must  be  stated.2 
The  facts  must  be  stated  on  a  first  application.3  The  application 
must  state  that  due  diligence  was  used ;  a  statement  of  the  diligence 
used  will  not  dispense  with  this  allegation.4  Every  fact  stated  in 
the  application  may  be  true,  and  still  due  diligence  may  not  have 
been  used.5  A  statement  of  a  mere  legal  conclusion  that  diligence 
was  used  is  not  sufficient.6 

Although  the  statute  requires  due  diligence  in  all  cases,  it  seems 
that  due  or  sufficient  diligence,  or  the  diligence  that  may  be  re- 
quired of  a  party,  may  amount  to  more  than  statutory  diligence  in 
some  cases.  It  is  said  that  "  the  party  may  be  able  to  state  that 
statutory  diligence  was  used,  and  yet  refuse  to  swear  that  it  was 
sufficient.  Facts  may  exist  within  the  knowledge  of  the  affiant 
that  would  restrain  him  from  making  oath  that  due  diligence  had 
been  used,  when  he  could  promptly  swear  that  ordinary  statutory 
diligence  had  been  used."  These  remarks  are  made  in  a  case  in 
which  the  applicant  omitted  to  state  that  due  diligence,  or  any  dili- 
gence, had  been  used,  but  the  facts  were  stated.7 

Due  diligence  consists,  ordinarily,  in  the  use  of  the  means  given 
by  law  to  procure  testimony ;  as,  the  issuance  and  service  of  subpoe- 
nas, or  the  filing  of  interrogatories,  succeeded  by  notice  to  the  ad- 
verse party,  and  issuance  of  commission  and  procuring  the  answers 
of  the  witness  without  delay.8 

§  415.  Probability  of  procuring  the  evidence. 

The  application  ought  to  show  that  there  is  a  reasonable  proba- 
bility that  the  desired  evidence  can  be  procured  within  a  reasonable 
time  —  ordinarily  by  the  next  term ; 9  especially  where  no  diligence 

i  Tillman  v.  Fletcher,  78  T.  673  (15  S.  W.  Rep.  161).  Application  was  made  for 
a  continuance  on  the  ground  of  the  absence  of  the  defendant,  who  was  alleged, 
to  be  a  material  witness,  but  as  no  reason  was  given  for  his  absence  it  was  held 
insufficient.  Davis  v.  Foreman,  20  S.  W.  Rep.  52. 

2R.  S.  1277,  1278;  Falls  L.  &  C.  Co.  v.  Chisholm,  71  T.  523  (9  S.  W.  Rep.  479). 

3  Mays  v.  Lewis,  4  T.  38;  Flournoy  v.  Marx,  33  T.  786;  McMahan  v.  Busby,  29 
T.  191;  Lewis  v.  Williams,  15  T.  47. 

« Crawford  v.  Saunders,  29  S.  W.  Rep.  102;  St.  L.  &  S.  F.  Ry.  Co.  v.  Woolum, 
84  T.  570  (19  S.  W.  Rep.  782). 

6  Brown  v.  National  Bank,  70  T.  750  (8  S.  W.  Rep.  599). 

«Mo.  Pac.  Ry.  Co.  v.  Aiken,  71  T.  373  (9  S.  W.  Rep.  437). 

?  St  L.  &  S.  F.  Ry.  Co.  v.  Woolum,  84  T.  570  (19  S.  W.  Rep.  782). 

8  McMahan  v.  Busby,  29  T.  191;  Lewis  v.  Williams,  15  T.  47;  Byrne  v.  Jackson, 
25  T.  95. 

9Cabel  v.  Holloway,  31  S.  W.  Rep.  201. 


§  410.]  CONTINUANCE   OF   A   CAUSE.  399 

has  been  used  to  obtain  the  testimony,  and  the  party  seeks  to  ex- 
cuse his  want  of  diligence.1  An  application  which  fails  to  state 
when  the  applicant  expects  to  obtain  the  testimony  is  properly  re- 
fused.2 Where  the  affidavit  stated  that  the  affiant  expected  to  have 
the  testimony  at  the  next  term,  it  was  held  insufficient  because  it 
did  not  disclose  facts  to  justify  the  expectations.3 

§  416.  A  party  must  not  delay  the  preparation  of  his  case. 

A  plaintiff  must  use  due  diligence  to  procure  his  testimony  at  the 
first  term  of  the  court,  irrespective  of  what  may  be  the  defendant's 
answer;  he  cannot  safely  wait  for  the  coming  in  of  the  answer  be- 
fore subpoenaing  his  witnesses,  and  if  he  do  so  it  will  be  at  his  peril.* 
Parties  are  chargeable  with  notice  of  the  materiality  of  each  link 
in  their  chain  of  title,  and  the  trial  of  a  cause  will  not  be  postponed 
to  procure  absent  testimony  unless  due  diligence  has  been  used  to 
procure  it.5  In  a  personal  action  against  a  non-resident,  since  juris- 
diction over  him  is  acquired  by  the  filing  of  his  answer,  and  not  by 
the  service  of  notice  on  him  in  another  state,  the  matter  of  diligence 
in  preparing  his  defense  should,  on  application  for  first  continuance, 
be  reckoned  from  the  time  when  the  answer  was  filed,  and  not 
from  the  date  when  such  notice  was  served.6 

When  new  matter,  material  to  a  cause  of  action,  is  pleaded  on 
the  eve  of  trial,  the  adverse  party,  on  proper  application,  should 
be  allowed  a  continuance.7  The  defendant  should  not  rely  upon 
the  production  of  documentary  evidence  by  the  plaintiff;  and  he 
cannot  allege  surprise  if  the  plaintiff  be  permitted  to  prove  the  loss 
of  an  instrument  and  offer  secondary  evidence  of  its  contents.8 

i  Byrne  v.  Jackson.  25  T.  95;  W.  U.  Tel.  Co.  v.  Berdine,  2  Civ.  App.  517  (21  S. 
W.  Rep.  982). 

2Stachley  v.  Peirce,  28  T.  828;  Franks  v.  Williams,  87  T.  24. 

'Trauiell  v.  Pilgrim,  20  T.  158.  Where  depositions  have  been  on  file  for  years, 
a  continuance  to  obtain  different  answers  from  the  deponent  is  properly  refused, 
especially  where  the  affiant  fails  to  show  any  reason  for  expecting  to  obtain 
such  answers.  MacDonnell  v.  Fuentes,  7  Civ.  App.  136  (26  S.  W.  Rep.  792).  Con- 
tinuance properly  refused  where  the  party  was  not  sure  that  he  could  make  the 
proof  necessary  to  admit  a  deed  in  evidence.  French  v.  Groesbeck,  :.'?  t>.  W. 
Rep.  43. 

*Osborne  v.  Scott,  13  T.  59. 

«  McFaddin  v.  Preston,  54  T.  403. 

6  Hartley  v.  Conn,  4  Civ.  App.  299  (23  S.  W.  Rep.  383). 

7  O.,  H.  &  &  A.  Ry.  Co.  v.  Smith,  29  S.  W.  Rep.  186.    A  judgment  was  obtained 
in  a  justice's  court  for  damages  for  killing  an  animal,  and  to  a  bill  Hied  to  en- 
join the  same  for  want  of  service  the  defendant  pleaded  the  original  cause  of 
action  in  reconvention.    The  answer  was  filed  only  a  few  minutes  before  the  case 
was  called  for  trial,  and  it  was  held  error  to  refuse  the  plaintiff  a  continuance. 
He  was  not  bound  toanticipate  the  defendant's  cross-action,  as  lie  could  plead  in 
reconvention  or  not,  as  he  chose.    G.,  C.  &  S.  F.  Ry.  Co.  v.  Schneider,  28  S.  W. 
Rep.  260. 

8 Ma  Pac.  Ry.  Co.  v.  Kuthman,  2  App.  C.  C.,  §  46a    A  motion  by  defendant's 


400  CONTINUANCE   OF   A   CAUSE.  [§§  417,  418. 

Intoxication  of  a  witness  is  a  ground  for  continuance;  and  if  a 
party  risks  a  verdict  upon  the  testimony  of  a  witness  who  is  intoxi- 
cated he  cannot  have  a  new  trial.1  The  general  rule  seems  to  be 
that  the  absence  of  a  witness  or  of  documentary  evidence,  even 
when  discovered  after  announcing  ready  for  trial,  or  the  want  of 
proper  preparation  generally,  should  be  made  the  ground  for  a 
motion  for  a  continuance  in  order  to  give  the  party  any  reason  for 
a  new  trial.2 

§417.  Excusing  want  of  diligence. 

When  a  party  seeks  to  excuse  the  want  of  diligence,  the  suffi- 
ciency of  his  excuse  is  a  matter  addressed  to  the  sound  discretion  of 
the  court,  and  the  ruling  will  not  be  revised  unless  it  appears  that 
the  discretion  has  been  abused.3  The  application  must  show  a  valid 
excuse  for  failing  to  resort  to  the  legal  remedies  for  procuring  the 
desired  evidence,  and  the  court  judges  of  the  sufficiency  of  the  facts 
stated ; 4  he  should  also  make  oath  to  the  merits  of  his  case,  and 
show  that  there  is  a  reasonable  probability  that  the  testimony  can 
be  procured  within  a  reasonable  time  —  ordinarily  by  the  next 
term.5  If  it  be  shown  that  no  diligence  would  have  been  success- 
ful, the  effect  is  the  same  as  if  due  diligence  had  been  used ; 6  but 
the  facts  must  be  stated  so  that  the  court  may  determine  whether 
statutory  diligence  would  have  been  effectual.7 

§  418.  Materiality  of  absent  testimony. 

On  a  first  application  the  affidavit  must  state  simply  that  the  ab- 
sent testimony  is  material ;  on  a  second  and  subsequent  application 
the  materiality  must  be  shown.8  Where  the  application  is  for  a 
first  continuance,  and  complies  with  the  statute,  stating  that  the 
evidence  is  material  simply,  it  must  be  granted ;  but  if  it  goes  fur- 
ther and  states  the  facts  known  to  the  witness,  and  the  court  can 

counsel  for  a  continuance  of  the  case  on  account  of  defendant's  absence,  stat- 
ing diligence,  and  alleging  the  necessity  of  his  presence  to  verify  his  amended 
plea,  is  addressed  to  the  discretion  of  the  court.  Hannah  v.  Chadwick,  2  App. 
C.  C.,  §  518. 

1  Land  v.  Miller,  7  T.  463. 

2  Cook  v.  Southwick,  9  T.  615;  Kilgore  v.  Jordan,  17  T.  341;  Devine  v.  Martin, 
15  T.  25;  Birdwell  v.  Cox,  18  T.  535;  House  v.  Cessna,  6  Civ.  App.  7  (24  S.  W. 
Rep.  962).    Where  a  party  having  certain  defectively  acknowledged  deeds  as 
evidence  goes  to  trial,  he  cannot  secure  a  continuance  to  procure  the  attend- 
ance of  the  notary  to  prove  the  execution.    Threadgill  v.  Bickenstaff,  26  S.  W. 
Rep.  739. 

31.  &  G.  N.  Ry.  Co.  v.  Fisher,  28  S.  W.  Rep.  398;  Pointer  v.  Flash,  2  U.  C.  742. 

4  Pointer  v.  Flash,  2  U.  C.  742. 

*  Byrne  v.  Jackson,  25  T.  95. 

« Payne  v.  Cox,  13  T.  480;  Price  v.Lauve,  49  T.  74. 

7  Carter  v.  Eames,  44  T.  544. 

*R  S.  1277,  1278;  McGehee  v.  Minter,  25  S.  W.  Rep.  718. 


§419.]  CON11MAMK    «iF    A    CAUSE.  401 

see  from  an  inspection  of  the  pleadings  that  the  proposed  testimony 
is  irrelevant,  the  application  may  be  refused.1  The  application 
may  be  refused  where  the  evidence  is  cumulative.2 .  Testimony  to 
independent  facts  which  tend  to  establish  an  issue  is  not  cumula- 
to  other  such  testimony.  The  rule  that  a  new  trial  will  not 
be  granted  to  obtain  cumulative  testimony  does  not  apply  as  a  rea- 
son for  overruling  a  motion  for  a  continuance.  Such  testimony 
may  lie  material  although  cumulative.1 

If  the  desired  evidence,  when  procured,  would  not  tend  to  defeat 
a  recovery  by  the  plaintiff,  there  is  no  error  in  refusing  the  appli- 
cation.4 The  overruling  of  an  application  which  is  not  in  compli- 
ance with  the  statute  may  be  a  ground  for  reversal,  if  it  appears 
from  the  affidavit,  or  from  facts  developed  during  the  trial,  that 
the  desired  testimony  was  necessary  for  the  attainment  of  justice.8 
If  the  absent  testimony  was  ever  material,  it  will  be  presumed 
that  it  remained  material,  where  there  has  been  no  amendment  of 
the  pleadings.6 

§  419.  Efforts  to  discover  materiality  of  testimony. 

Diligence  must  be  shown  in  discovering  the  materiality  of  the 
desired  testimony.  An  affidavit  to  the  effect  that  affiant  discovered 
the  materiality  of  the  testimony  too  late  to  procure  it  in  time  by 
any  diligence  in  his  power  is  not  sufficient;  facts  should  be  stated, 
so  as  to  enable  the  court  to  determine  whether  the  materiality  of 
the  evidence  might  have  been  discovered  in  time.7  A  statement, 
uimply,  that  the  evidence  was  not  discovered  until  the  present  term 
of  the  court  is  not  sufficient;  facts  showing  or  excusing  diligence 

1  Price  v.  Lauve,  49  T.  74. 

2  Green  v.  Crow,  17  T.  180. 

a  Dillingham  v.  Ellis,  86  T.  447  (25  S.  W.  Rep.  618). 

« Herman  v.  Gunter,  83  T.  66  (18  S.  W.  Rep.  428).  In  this  case  the  defendant 
•expected  to  prove  by  the  missing  testimony  that  the  plaintiff  obtained  the  note 
in  suit  with  notice  of  fraud  and  failure  of  consideration,  and  without  paying  a 
valuable  consideration.  But  as  plaintiff  was  the  indorsee  of  a  bona  fide  holder, 
the  testimony  was  immaterial,  and  the  application,  being  a  third  one,  was  prop- 
erly overruled. 

An  application  for  continuance  on  account  of  the  absence  of  witnesses  to  dis- 
prove certain  allegations  in  the  pleadings  of  the  plaintiff  is  properly  overruled 
when  the  plaintiff  withdraws  and  abandons  the  allegations  sought  to  be  dis- 
proved by  the  absent  witnesses.  S.  A.  &  A.  P.  Ry.  Co.  v.  Robinson,  78  T.  277  (11 
&  W.  Rep. 

4  Stanley  v.  Epperson,  45  T.  64.").  Wliere  the  matters  pleaded  in  an  answer 
present  no  defense,  evidence  to  prove  them  is  immaterial,  and  a  continuance  to 
procure  such  evidence  is  properly  refused.  Alexander  v.  Brown,  29  S.  W.  Rep. 
561;  Hardison  v.  Hooker,  25  T.  91;  Chambers  v.  Bonner,  33  T.  511. 

«State  v.  Rhomberg,  69  T.  212  (7  S.  W.  Rep.  I!*'.). 

"Baldessore  v.  Stephanes,  27  T.  4Go;  Boatright  v.  Linani,  16  T.  243;  Lewis  v. 
•Williams.  15  T.  47. 
26 


403  CONTINUANCE   OF   A   CAUSE.  [§  420, 

must  be  shown.1  An  affidavit  stating  that  the  applicant  caused  a 
subpoena  to  be  issued  as  soon  as  possible  after  discovering  the  ma- 
teriality of  the  testimony,  but  which  fails  to  disclose  when  the  dis- 
covery was  made,  is  defective.2 

§  420.  Statement  of  testimony  of  absent  witness. 

On  a  second  or  any  subsequent  application,  the  applicant  must 
state  what  he  expects  to  prove  by  the  absent  witness.3  An  affidavit 
which  does  not  state  the  facts  expected  to  be  proved  by  the  absent 
witness,  but  merely  states  inferences  and  conclusions  which,  it  is- 
asserted,  could  be  established  if  the  witness  were  present,  is  not 
sufficient  to  warrant  a  second  continuance.4  The  statute  requires 
the  facts  to  be  stated  not  only  for  the  purpose  of  allowing  the  court 
to  judge  of  their  materiality,  but  to  enable  the  adverse  party  to- 
ad mit  what  the  absent  witness  would  state,  and  thereby  prevent  a 
postponement  of  the  trial;  and  a  party  cannot  defeat  the  right  of 
his  adversary  to  an  immediate  trial  by  making  his  statement  of  the 
needed  evidence  so  indefinite  as  to  render  it  uncertain  what  verdict 
the  jury  would  have  found  if  the  witness  had  testified  and  the  ver- 
dict had  been  based  on  the  testimony.5 

It  is  not  sufficient  to  state  that  affiant  has  been  told  by  reputable 
persons  that  the  absent  witness  will  testify  to  certain  facts;  it  must 
be  stated  positively  that  he  will  so  testify.6  The  facts  must  be 
stated  with  particularity.7 

The  testimony  need  not  be  stated  on  a  first  application;8  but  if 

1  Wheeler  v.  Styles,  28  T.  240;  Lewis  v.  Williams,  15  T.  47. 

2  Green  v.  Duncan,  35  T.  175. 

3R.  S.  1278;  Merchant  v.  Bowyer,  3  Civ.  App.  367  (22  S.  W.  Rep.  763). 

4  Arnold  v.  Hockney,  51  T.  46.  An  application  based  on  evidence  of  "  certain- 
conduct  of  plaintiff  which  contradicts,"  etc.,  and  evidence  of  letters  "which 
virtually  admit."  etc.,  without  the  production  of  such  letters,  is  too  vague.  Doll 
v.  Mund'ine,  26  S.  W.  Rep.  87. 

»G.,  H.  &  S.  A.  Ry.  Co.  v.  Home,  69  T.  643  (9  S.  W.  Rep.  440).  This  was  an  ac- 
tion for  damages  for  destruction  of  grass  by  fire,  and  it  was  stated  that  the 
absent  witnesses  would  prove  that  the  value  of  the  grass  was  much  less  than 
plaintiff  claimed,  but  how  much  less  was  not  stated.  This  was  held  insufficient. 
Had  the  plaintiff  admitted  all  that  was  stated,  he  could  not  have  contradicted 
it  at  the  trial  by  other  witnesses,  and  the  jury  would  have  been  without  any 
guide  as  to  the  value  of  the  grass,  and  the  verdict  would  have  been  without  evi- 
dence to  support  it,  no  matter  what  might  be  its  amount.  The  plaintiff  placed 
his  damage  at  $5  an  acre,  and  the  jury  allowed  $3.50  an  acre.  There  being  noth- 
ing to  show  what  value  the  absent  witnesses  would  have  placed  upon  the  grass, 
the  appellate  court  could  not  say  that  the  applicant  was  prejudiced  by  the  ab- 
sence of  his  witnesses. 

« Green  v.  Crow,  17  T.  180. 

7Martel  v.  Hernsheim,  5  T.  205.  The  affidavit  should  not  be  so  general  in  its- 
terms  as  to  make  it  impossible  to  have  a  conviction  for  perjury  upon  it  in  case 
it  should  be  wilfully  false.  Mays  v.  Lewis,  4  T.  38. 

8R.S.  1277. 


I.  CONTIM  AN'CE    OF    A    CAt>  403 

the  facts  lie  disclosed,  the  court  should  take  them  into  cunsid. -ra- 
tion in  determining  upon  the  application ; '  it  is  proper  for  the  court 
to  look  to  tin-  pleadings  in  such  case,  and  consider  the  relevancy  and 
materiality  of  the  proposed  evidence,  and  if  it  be  irrelevant  or  im- 
material, the  application  may  be  overruled.-' 

application  for  postponement  on  account  of  the  absence  of 
witnesses,  to  obtain  whose  attendance  no  diligence  is  shown,  is  ad- 
d rosed  to  the  discretion  of  the  court;  and  no  abuse  of  this  discre- 
tion is  apparent  where  the  applicant  does  not  state  in  a  second 
application  what  he  expects  to  prove  by  the  witnesses,  nor  show  in 
a  motion  for  new  trial  that  he  has  suffered  injury  from  their  non- 
attendance.3 

g  421.  Process  for  witnesses. 

Failure  to  take  out  a  subpoena  or  attachment  for  witnesses  is 
fatal  to  an  application  for  a  continuance.4  Due  diligence  is  not 
shown  by  the  statement  that  subpoenas  were  placed  in  the  hands  of 
the  sheriff;  the  time  should  be  stated.5  The'  application  should 
state  when  and  by  whom  the  subpoena  was  served.6  Where  the 
sheriff  is  a  party  the  subpoena  may  be  served  by  his  deputy.7  If 
the  sheriff's  attendance  as  a  witness  is  desired,  he  must  be  sub- 
pienaed;  a  failure  will  not  be  excused  on  the  ground  that  it  was 
expected  that  the  sheriff  would  attend  court  in  his  official  capacity.8 

As  a  snbpo-na.  does  not  run  beyond  the  county,  the  application, 
ought  to  show  that  the  witnesses  subpoenaed  are  residents  of  the 
county:'1  and  it  must  appear  that  the  subpoena  was  served  in  time 
to  enable  the  witnesses  to  attend.10  If  a  witness  fails  to  obey  a  sub- 

1  Flournoy  v.  Marx,  33  T.  786;  Williams  v.  Talbot,  27  T.  159. 

2  Douglas  v.  N.-il.  :{?  T.  528. 

SRubreeht  v.  Powers,  1  Civ.  App.  282;  Campbell  v.  McCoy,  8  Civ.  App.  2'.N  rJ;? 
S.  \v.  !;•  •)>.  :i|i.  Where  a  defendant  asks  for  a  continuance  during  tli.-  trial, 
alleging  surprise  by  plaintiff's  being  permitted  to  prove  the  contents  of  a  lost 
notice  by  purol,  it  is  held  that  he  must  state  in  what  respect  the  evidence  he  ex- 
pects to  procure  will  differ  from  that  adduced  by  plaintiff;  this  ruling  is  made 
without  reference  to  whether  the  application  is  a  first  or  second  application. 
Mo.  Pac.  Ry.  Co.  v.  Kuthman,  2  App.  C.  C.,  g  463. 

«Hensley  v.  Lytle,  5  T.  -in;. 

»  Green  v.  Dunman,  35  T.  175;  Robinson  v.  Martel,  11  T.  149. 

"Tittle  v.  Vanleer,  27  S.  W.  Rep.  736.  An  application  for  a  continuance,  made 
in  May,  1883,  on  account  of  the  absence  of  a  witness  residing  in  the  county.  \vlu> 
was  alleged  to  have  been  subpoenaed  in  May,  1882,  no  other  fact  in  regard  to 
ilu>-  diligence  being  shown,  was  properly  overruled.  The  witness  may  have  re- 
fused at  a  former  term  to  obey  the  subpoena.  City  Nat  Bank  of  Ft.  Worth  v. 
Stout,  61  T.  567. 

•Blum  v.  Bassett,  67  T.  194  (3  S.  W.  Rep.  33). 

8  Adair  v.  Cooper,  25  T.  548. 

a  Ellis  v.  Wiley.  7  T.  134;  Burditt  v.  Glasscock,  25  TV45. 

lOPulliam  v.  Webb,  26  T.  95;  Henderson  v.  State,  22  T.  593;  Connor  v.  Samp- 
son, 22  T.  20.  The  issuance  of  a  subpoena  two  days  before  the  trial,  for  a  wit- 


40-4  CONTINUANCE   OF   A   CAUSE.  [§  422. 

poena,  he  may  be  compelled  to  attend  by  attachment,  provided  his 
fees  have  been  paid  or  tendered ; l  and  if  there  be  time  to  bring 
him  in  by  attachment  before  the  case  is  called  for  trial,  the  party 
ought  to  move  promptly,  and  see  that  the  attachment  is  issued  and 
served.2 

In  determining  the  correctness  of  the  ruling  of  the  trial  court 
upon  an  application  for  a  continuance  otherwise  apparently  good 
upon  its  face,  the  question  of  diligence,  where  the  subpoena  has  not 
been  executed,  would  depend  very  much  upon  the  time  when  de- 
fendant was  cited,  with  reference  to  the  date  of  the  issuance  of  his 
subpoena  for  the  absent  witness;  and  the  date  of  the  service  of  the 
citation  should  be  shown  to  enable  the  appellate  court  to  determine 
.the  question  satisfactorily.3 

§  422.  Whether  witness  fees  should,  be  paid  or  tendered. 

An  attachment  will  not  issue  for  a  witness  who  disobeys  a  sub- 
poena, unless  it  be  shown  by  affidavit  that  his  lawful  fees  have  been 
paid  or  tendered  to  him.4  Payment  or  tender  of  witness  fees  need 
'not  be  shown  on  the  first  application ; 5  nor,  it  seems,  on  a  second 
-application;  especially  if  the  absence  is  caused  by  sickness.6  The 
point  is*  not  definitely  decided,  however.  The  fact  that  no  attach- 
ment can  issue  unless  the  fees  have  been  paid  or  tendered  is  noticed, 
but  this  seems  to  be  considered  of  little  or  no  importance  from  the 

ness  residing  remote  from  the  county  seat,  was  held  to  show  a  lack  of  dili- 
gence.   Parker  v,  Campbell,  21  T.  763;  Hall  v.  York,  16  T.  18;  Parker  v.  Leman, 
10  T.  116. 
IR.S.  2267. 

2  Rowland  v.  Wright,  64  T.  261;  Bryce  v.  Jones,  38  T.  205. 

3  G.,  C.  &  S.  F.  Ry.  Co.  v.  Flake,  1  App.  C.  C.,  §  253.    On  a  first  application  for 
continuance  it  was  not  stated  that  •'  due  diligence  "  had  been  used  to  procure 
•the  testimony  of  the  absent  witness,  but  the  date  was  stated  when  the  sub- 
prena  was  placed  in  the  hands  of  the  officer.     It  stated  that  the  witness  had 
been  served,  but  did  not  state  when.    The  process  was  applied  for  when  the  plea 
of  the  applicant  was  filed  on  March  9, 1886,  and  the  application  to  continue  was 
made  April  2,  1886.    The  application  was  properly  overruled.    Brown  v.  Na- 
tional Bank,  70  T.  750  (8  S.  W.  Rep.  599). 

Where  a  suit  had  been  pending  for  over  two  years,  and  subpoena  issued  for 
the  absent  witnesses  but  a  few  days  before  the  cause  was  called  for  trial,  an  ap- 
plication for  continuance  because  of  the  absence  of  the  witnesses  was  properly 
refused  for  want  of  due  diligence  to  obtain  the  testimony.  City  of  East  Dallas 
v.  Barksdale,  83  T.  117  (18  S.  W.  Rep.  329).  See  Tex.  &  Pac.  Ry.  Co.  v.  Snyder,  18 
&  W.  Rep.  559. 

It  seems  that  the  service  of  a  subpoena  duces  tecum,  requiring  a  witness  to  pro- 
duce a  certain  article  in  court,  is  not  diligence  sufficient  to  authorize  a  continu- 
.ance  if  the  article  is  not  produced.  Texas  Express  Co.  v.  Scott,  2  App.  C.  C., 

:§72. 

*  R.  S.  2267. 

5  Texas  Transp.  Co.  v.  Hyatt,  54  T.  213;  H.  &  T.  C.  Ry.  Co.  v.  Wheeler,  1  App. 
C.  C.,  §  170;  Blum  v.  Basse tt,  67  T.  194  (3  S.  W.  Rep.  33). 
«Dillingham  .v.  Ellis,  86  T.  447  (25  S.  W.  Rep.  618). 


-'•!.]  OOXTI.NTANCE   OF   A   CAUSE.  405 

liat  it  could  not  be  known  that  an  attachment  would  benee<lt-<l 
until  the  time  at  which  the  witness  is  summoned  to  appear.  In  an 
earlier  <-a>e.'1  it  was  said  that  a  mere  service  of  a  subpoena  without. 
tender  of  fees  is  the  slightest  diligence  that  a  party  can  use,  but 
the  matter  seems  to  be  left  to  be  decided  on  the  facts  of  each 
according  to  a  just  discretion.  In  Bryce  v.  Jones,  38  T.  :><'."),  it  i* 
expivssly  ruled  that  the  fees  of  the  witness  must  be  tendered  on  a 
sen  mi  I  or  subsequent  application. 

?'  423.  Diligence  in  taking  depositions. 

I>ej>ositions  of  witnesses  may  be  taken  in  all  civil  suits,  whether 
the  witness  resides  in  the  county  where  the  suit  is  brought,  or  out 
of  it.  The  failure  to  secure  the  deposition  of  a  male  witness  resid- 
ing in  the  county  in  which  the  suit  is  pending  will  not  be  regarded 
tnt  of  diligence,  where  diligence  has  been  used  to  secure  his 
personal  attendance  by  the  service  of  subpoena  or  attachment  under 
the  rules  of  law,  unless  by  reason  of  age,  infirmity  or  sickness  or 
official  duty  the  witness  will  be  unable  to  attend  the  court;  or  un- 
less he  is  about  to  leave  or  has  left  the  state  or  county  in  which 
the  suit  is  pending  and  will  not  probably  be  present  at  the  trial.2 

Article  L'L'IS  of  the  Revised  Statutes  of  1879  provided  for  taking- 

the  deposition  of  a  female  witness  without  regard  to  her  place  of 

•nee,  and  it  was  held  that  the  absence  of  a  female  witness  was 

no  cause  for  continuance  when  no  proper  diligence  had  been  used 

to  procure  her  evidence  by  deposition.* 

Afl  witnesses  residing  out  of  the  county  are  not  required  to  obey 
a  subjxi-ua,  it  would  be  negligence  to  omit  the  proper  steps  to  pro- 
cure their  testimony  in  time  for  the  trial.4  The  application  should 
clearly  and  fully  set  out  to  whom  interrogatories  were  sent,  the 
substance  of  the  material  testimony  not  obtainable  then,  the  efforts 
to  ascertain  the  whereabouts  of  witnesses,  that  their  evidence  will 
be  at  hand  at.  the  next  term  of  the  court,  and  other  like  facts 
explaining  fully  the  various  things  done  constituting  diligence.5 

Where  a  party  to  a  suit  residing  in  another  county  neglects  to 

'Tex.  &  Par.  Ry.  Co.  v.  Hall,  83  T.  675  (19  S.  W.  Rep.  121).  See  Doll  v.  Mun- 
dine.  7  Civ.  App.  96  (26  S.  W.  Rep. 

-  A.-ts  1879,  p.  126;  R.  S.  2-,'7:5:  DiHinghain  v.  Ellis,  8G  T.  447  (23  S.  W.  Rep.  618). 
3  Cotton  Press  Co.  v.  Bnnll-y.  32  T 

*  O.,  C.  &  S.  F.  Ry.  Co.  v.  Wheat,  68  T.  i:«  (3  &  W.  Rep.  4 

5  Tex.  &  Pac.  Ry.  Co.  v.  Hardin,  62  T.  367;  Tex.  &  Pac.  Ry.  Co.  v.  Hopkins 
2  App.  C.  C.,  §  66;  Tinsley  v.  Rusk  Co.,  42  T.  41 :  Stinnett  v.  Rice,  36  T.  106.  A. 
>t;itrmrr»t  that  a  party  has  made  an  effort  to  get  the  depositions  of  certain  wit- 
nesses, by  making  out  interrogatories,  having  them  crossed  by  opposing  coun- 
s.-l.  who  have  agreed  to  waive  commissions  and  consented  that  the  depositions 
might  be  taken  before  any  officer  legally  qualified,  is  not  stating  that  due  dili- 
gence contemplated  by  law.  Tex.  &  Pac.  Ry.  Co.  v.  Hardin,  62  T.  367;  L  &  G. 
N.  Ry.  Co.  v.  Ragsdale,  67  T.  24  (2  S.  W.  Rep.  313). 


406  CONTINUANCE   OF   A   CAUSE.  [§  424. 

have  his  testimony  taken  by  depositions,  or  for  any  reason  chooses 
to  take  the  risk  of  his  attendance  upon  the  court  when  there  is  time 
i'or  taking  his  depositions,  he  is  not  entitled  to  a  continuance  on  ac- 
count of  his  absence,  although  his  testimony  be  material  and  his 
absence  accidental.1  A  plaintiff  is  not  entitled  to  a  continuance  to 
procure  the  evidence  of  his  co-plaintiff,  where  diligence  is  not  shown 
in  the  issuance  of  a  commission  to  take  his  deposition,  as  well  as  in 
the  filing  of  interrogatories.2 

§  424.  Testimony  not  obtainable  from  any  other  source. 

On  a  second  or  subsequent  application,  if  made  for  want  of  tes- 
timony, it  must  be  stated  that  the  testimony  cannot  be  obtained 
from  any  other  source.3  "Where  it  appears  that  there  is  other  tes- 
timony than  that  sought,  the  application  should  show  on  its  face 
facts  from  which  the  court  may  determine  whether  the  desired  tes- 
timony is  essential  to  the  case  of  the  applicant.4  The  affidavit 
should  negative  the  supposition  that  there  might  be  other  witnesses 
by  whom  the  facts  could  be  proved.5  A  third  application  must 
state  that  testimony  cannot  be  obtained  from  any  other  source, 
and  that  the  continuance  is  not  sought  for  delay,  but  that  justice 
may  be  done.6 

1  Mayer  v.  Duke,  72  T.  445  (10  S.  W.  Rep.  565).    Application  was  made  for  a 
continuance  to  procure  the  testimony  of  a  witness.    The  suit  was  instituted 
January  9,  but  the  party,  with  full  knowledge  that  the  testimony  was  necessary, 
took  no  steps  to  procure  it  until  August  25  following,  and  it  was  held  that  the 
application  was  properly  refused.    Poole  v.  Jackson,  66  T.  380  (1  S.  W.  Rep.  75). 
A  case  having  been  upon  the  docket  for  so  long  as  two  years,  a  party,  in  his  first 
application  for  continuance,  is  held  to  the  most  rigid  requirements  of  the  stat- 
utes.   Watson  v.  Blymer  Manuf.  Co.,  66  T.  558  (2  S.  W.  Rep.  353). 

A  second  continuance  was  properly  refused  to  the  defendant,  a  railway  com- 
pany, upon  its  application,  on  account  of  the  absence  of  an  employee  residing 
in  another  county,  no  effort  having  been  made  to  take  his  depositions,  his  per- 
sonal attendance  being  expected,  but  was  not  secured  on  account  of  a  leave  of 
absence  having  been  granted  the  witness  by  one  of  the  officers  of  the  defendant. 
E.  L.  &  R.  R.  Ry.  Co.  v.  Scott,  71  T.  703  (10  S.  W.  Rep.  99).  It  was  not  error  to 
overrule  a  first  application  for  continuance  only  stating  as  diligence  that  a  com- 
mission had  been  obtained  to  take  the  testimony  of  the  absent  witnesses  and 
sent  to  the  general  attorneys  of  the  railroad  company,  the  applicant,  and  not 
stating  the  time  necessary  to  obtain  the  testimony.  Missouri  Pac.  Ry.  Co.  v. 
Shuford,  72  T.  165  (10  S.  W.  Rep.  408).  See  W.  U.  Tel.  Co.  v.  Rosentreter,  80  T. 
406  (16  S.  W.  Rep.  25). 

An  affidavit  for  second  continuance  not  showing  that  funds  were  sent  or  pro- 
vided to  defray  the  expense  of  taking  the  depositions  of  non-resident  witnesses 
by  commission  does  not  show  due  diligence.  Little  v.  State,  75  T.  616  (12  S.  W. 
Rep.  965). 

2  Merchant  v.  Bowyer,  3  Civ.  App.  367  (21  S.  W.  Rep.  1016). 

3R.  S.  1278;  Campion  v.  Angier,  16  T.  91;  Boatright  v.  Linam,  16  T.  243. 

4  McMichael  v.  Truehart,  48  T.  216. 

5  Wall  v.  State,  18  T.  682;  Stinnett  v.  Rice,  36  T.  106. 

6  Neeper  v.  Irons,  3  App.  C.  C..  £  181.    An  application  for  a  third  continuance, 
which  fails  to  show  that  the  testimony  expected  from  the  absent  witness  can- 


§§  4^."),  4'Jrt.]  MINL'ANCE    OF    A    CAlbE.  4l»7 

§  425.  Name  and  residence  of  witness. 

The  name  ami  resilience  of  the  absent  witness  must  be  stated  on 
second  and  sulisetjiuMit  applications.1  "\Vhere  the  continuance  ia 
asked  on  account  of  the  absence  of  a  witness  who  lives  in  the 
county,  it  is  held  that  his  name  ought  to  be  given,  so  that  the  court 
inuv  be  assured  that  the  requisite  diligence  has  been  used.2  An  ap- 
plication which  discloses  that  the  applicant  knew  the  town  and 
state  where  the  witness  resided,  but  did  not  know  the  county  in 
which  the  town  was  located  until  the  day  of  filing  the  application, 
and  that  he  could  not  then  procure  his  testimony,  was  properly 
disregarded.3 

The  distance  of  the  residence  of  the  witness  from  the  court- 
house should  be  stated,  so  that  the  court  may  determine  whether 
the  subpoena  was  issued  in  time  to  procure  the  attendance  of  the 
witness.4 

?  426.  Absence  of  counsel. 

Absence  of  counsel  when  the  case  is  called  for  trial  is  not  a  good 
cause  for  a  continuance  or  postponement,  unless  it  be  allowed  in 
the  discretion  of  the  court,  upon  cause  shown  or  upon  matters 
within  the  knowledge  or  information  of  the  judge,  to  be  stated  on 
the  record.5  The  absence  of  a  particular  attorney,  the  leading  coun- 
sel in  the  case,  who  has  prepared  and  studied  the  case,  and  has  the 
papers,  and  on  account  of  whose  absence  important  testimony  was 
not  obtained,  was  held  no  ground  for  a  continuance  where  such  ab- 
sence was  anticipated  by  the  party  and  his  attorney  several  weeks 
before  court;  and  the  importance  of  the  business  which  called  the 
attorney  away  was  held  not  material.6  The  same  ruling  was  made 
where  the  motion  was  made  verbally,  and  not  sworn  to,  and  there 
was  nothing  to  show  that  the  absent  attorney  had  not  been  sick 
for  some  time,  and  his  absence,  therefore,  anticipated.7 

not  be  obtained  from  any  other  source,  is  fatally  defective.  When  such  an  ap- 
plication cannot  be  sustained  even  under  the  statute  prescribing  the  requisites 
of  an  application  for  a  second  continuance,  it  must,  in  order  to  be  granted, 
show  strong  equitable  grounds  outside  of  the  statute.  Rowland  v.  Wright,  64 
T.  261. 
*  R.  S.  1278;  Burditt  v.  Glasscock,  25  T.  Sup.  45. 

2  Stoddart  v.  Garnhart,  35  T.  300. 

3  G.,  H.  &  S.  A.  Ry.  Co.  v.  Gage,  63  T.  568.    That  a  witness  was  engaged  in 
business  near  the  court-house  does  not  prove  that  his  attendance  could  have 
been  had,  and  is  no  sufficient  reason  for  refusing  the  continuance.    City  of 
Corsicana  v.  Kerr,  75  T.  207  (12  S.  W.  Rep.  982). 

'  McMichael  v.  Truehart,  48  T.  216. 

5  Rule  49. 

«•  Haggerty  v.  Scott,  10  T.  r,jr,. 

7  Davis  v.  Zumwalt.  1  A  pp.  C.  C.,  §  596.  In  Page  v.  Arnim.  29  T.  53.  it  was  held 
that  A  continuance  u;is  properly  refused  where  the  presence  of  the  absent  at- 
torney was  not  actually  necessary.  In  V>'.  U.  Tel.  Co.  v.  Brooks,  78  T.  331  (14 


408  CONTINUANCE   OF   A   CAUSE.  [§§  427,  428, 

§  427.  Matters  of  practice. 

The  court  is  not  bound  to  notice  a  motion  for  a  continuance 
merely  filed  with  the  clerk,  although  the  clerk  may  call  attention 
to  it.  If  neither  the  plaintiff  nor  his  attorney  is  present  when  the 
case  is  called  for  trial,  it  may  be  dismissed  for  want  of  prosecu- 
tion.1 

If  a  continuance  is  improperly  refused,  and  the  party  is  compelled 
to  take  a  nonsuit,  a  refusal  to  reinstate  the  case  on  motion  is  error.2 

A  continuance  of  a  cause  carries  it  over  to  the  next  term.3  And 
an  entry  in  the  transcript,  "  Continued  by  general  order  of  court, 
from  October  term,  1868,  to  February  term,  1871,"  the  court  re- 
garded as  a  memorandum  of  the  clerk,  and  not  as  a  part  of  the 
record.4 

§  428.  ^Requisites  of  application. 

An  application  for  a  continuance  is  made  by  a  motion  in  writing, 
setting  forth  sufficient  cause.  It  is  the  usual  practice  to  embrace 
the  affidavit  in  the  motion,  but  it  must  appear  that  the  court  was 
called  to  act  upon  the  motion.5  Although  there  may  be  an  affidavit 
for  a  continuance  in  the  record,  yet  if  no  motion  appears  to  have 
been  predicated  upon  it,  the  refusal  of  a  continuance  cannot  be  as- 
signed as  error.8  Nor  does  it  follow  that  a  cause  was  continued  on 
affidavit,  merely  because  an  affidavit  has  been  filed  —  the  entry  of 
the  order  of  continuance  should  show  the  fact.7 

"Where  the  application  rests  upon  an  equitable  ground,  the  affi- 
davit should  make  a  full  statement  of  the  facts.8  The  court  cannot 
assume  the  existence  of  any  fact  necessary  to  authorize  a  continu- 
ance when  the  applicant  fails  or  is  unwilling  to  set  forth  such  fact 
in  the  application.9 

S.  W.  Rep.  699),  the  inference  is  that  if  the  presence  of  leading  counsel  is  neces- 
sary to  the  proper  defense  of  a  case,  a  continuance  should  be  granted, —  citing 
Strippleman  v.  Clark,  11  T.  296;  Ward  v.  Cobbs,  14  T.  303.    And  see  Cabel  v.  Hol- 
loway,  31  S.  W.  Rep.  201;  Grounds  v.  Ingram,  75  T.  509  (12  S.  W.  Rep.  1118). 
lEddleman  v.  McGlathery,  74  T.  280  (11  S.  W.  Rep.  1100). 

2  Peck  v.  Moody,  33  T.  84;  Cotton  v.  State,  4  T.  260;  Hensley  v.  Little,  5  T.  497; 
Western  v.  Woods,  1  T.  1. 

3  McCoy  v.  Jones,  9  T.  363. 

4  Morris  v.  Gordon,  36  T.  71.    The  defendant,  late  in  the  evening,  presented  3 
first  application  for  continuance  in  statutory  form,  and  the  court,  instead  of 
then  acting  on  it,  gave  the  plaintiff  until  next  morning  to  procure  the  attend- 
ance of  the  witnesses  named  therein,  which,  it  seems,  he  did.    No  injury  being 
shown  to  have  resulted  from  this  course,  it  is  to  be  commended  rather  than  con- 
demned.   Rubrecht  v.  Powers,  1  Civ.  App.  282  (21  S.  W.  Rep.  318). 

8  Pennell  v.  Lovett,  15  T.  265. 

«Spillars  v.  Curry,  10  T.  143;  Pierson  v.  Tom,  10  T.  145. 

'  Prewitt  v.  Everett,  10  T.  283. 

8  Stachley  v.  Peirce,  28  T.  328;  Chilson  v.  Reeves,  29  T.  275. 

9  Brown  v.  National  Bank,  70  T.  750  (8  S.  W.  Rep.  599).   Defendant  knew  of  the 
testimony  of  the  absent  witness  six  weeks  before  the  case  was  tried.    The  wit- 


OOXTINTANCE   OF    A    CAl '-  409 

In  a  civil  case  it  is  not  necessary  that  the  application  should  state 
that  the  absent  witnesses  were  in  attendance  on  the  first  day  of  the 
court.1 

§  429.  Attorney  or  agent  may  make  affidavit. 

The  statute  provides  that  whenever  at  the  commencement  or  dur- 
ing the  progress  of  any  civil  suit  it  may  be  necessary  or  proper  for 
any  party  thereto  to  make  an  affidavit,  such  affidavit  may  be  made 
by  either  the  party  or  his  agent  or  attorney.2  This  confers  upon 
the  attorney  the  same  right  to  make  an  affidavit  during  the  progress 
of  a  cause  that  the  law  confers  upon  the  client.  An  affidavit  for  a 
continuance  made  by  an  attorney  need  not  show  that  he  had  per- 
sonal knowledge  of  the  matters  stated.  There  may  be  cases,  it  is 
said,  in  which  the  subject-matter  of  the  affidavit  rests  peculiarly 
within  the  conscience  of  the  client,  and  in  such  cases  the  attorney 
making  the  affidavit  may  be  required  to  state  his  means  of  informa- 
tion'or  knowledge  of  the  facts  stated;  but  the  absence  of  witnesses, 
the  materiality  of  their  evidence,  and  the  diligence  used  to  procure 
their  attendance,  are  facts  that  can  be  learned  and  discovered  1>\ 
the  attorney  as  well  as  the  client,  and  are  often  known  to  the  at- 
torney when  unknown  to  the  client.3  The  fact  that  the  attorney 
or  agent  could  not  know  that  the  witness  is  not  absent  by  the  pro- 
curement or  consent  of  his  principal,  if  important  as  a  reason  why 
the  agent  should  not  make  the  affidavit,  as  held  in  Robinson  v. 
Martel,  11  T.  75,  is  important  only  on  a  second  or  subsequent  ap- 
plication.4 

§430.  Counter-affidavits. 

On  second  and  subsequent  applications,  counter-affidavits  will  be 
received  to  controvert  the  allegation  of  diligence  in  obtaining  testi- 

ness  had  promised  to  be  present,  but  moved  out  of  the  county  before  trial,  and 
no  subpoena  had  ever  been  issued.  The  facts  expected  to  be  proved  were  not 
stated,  nor  that  the  applicant  had  a  reasonable  expectation  of  procuring  hi& 
testimony  by  the  succeeding  term  of  the  court.  The  motion  was  ad«ln  >-> •.!  t<> 
the  discretion  of  the  court,  and  the  court  did  not  abuse  its  discretion  in  over- 
ruling it  Campbell  v.  McCoy,  3  Civ.  App.  298  (23  S.  W.  Rep.  34). 

1  Earth  v.  Jester,  3  App.  C.  C.,  §  2J.'. 

2R.S.  5. 

»Doll  v.  Mundine,  84  T.  315  (19  S.  W.  Rep.  394).  The  case  of  Robinson  v.  Mar- 
tel, 11  T.  149,  holding  that  the  application  must  show  that  the  attorney  had 
personal  knowledge  of  the  facts  stated,  was  decided  before  the  present  statute 
was  adopted.  But  with  the  statute  in  force  it  was  held  in  Brown  v.  State,  30 
T.  282,  that  there  was  no  error  in  overruling  an  application  for  a  continuance 
on  the  ground  of  absent  testimony,  where  the  affidavit  was  made  by  the  attor- 
ney and  no  reason  was  shown  why  the  client  did  not  make  it  himself.  The 
same  ruling  was  made  in  Stinnett  v.  Rice,  36  T.  106,  and  it  was  further  held  that 
the  affidavit  should  show  affirmatively  that  the  client  was  not  attempting  to- 
evade  the  requirements  of  the  law  by  procuring  others  to  swear  to  a  state  of 
facts  that  he  could  not  swear  to.  See,  also,  Baldessore  v.  Stephanes,  27  T.  -T>5. 

*  Blum  v.  Bassett,  67  T.  194  (3  S.  W.  Rep.  33). 


410  CONTINUANCE    OF   A   CAUSE.  [§§  431-433. 

mony.1  They  are  received  in  criminal  cases,  but  not,  it  seems,  to 
contradict  the  oath  of  materiality.2  Their  use  is  spoken  of  in  other 
cases.3  • 

§  431.  Motion  for  continuance  defeated  by  admission  of  facts. 

An  offer  to  admit  a  fact  defeats  a  motion  for  a  continuance  in 
order  to  obtain  testimony  to  prove  it ;  but  an  admission  that  the 
absent  witness  will  swear  to  the  facts  proposed  to  be  proved  by 
him  is  not  sufficient  —  the  facts  must  be  admitted.4 

§  432.  Granted  on  terms. 

A  party  cannot  reject  a  continuance  offered  on  terms,  and  take 
the  chances  of  a  verdict  in  his  favor,  and  then  ask  a  revision  of  the 
ruling  of  the  court  on  the  merits  of  his  motion,  if  the  judgment  be 
against  him ;  it  seems  that  if  a  party  accepts  the  continuance,  and 
properly  saves  an  exception  to  the  ruling  imposing  costs,  and  the 
judgment  is  in  his  favor  on  final  trial,  the  appellate  court  may  re- 
vise the  ruling  as  to  costs.5  In  an  early  case  it  was  held  that  the 
party  on  whom  the  terms  are  imposed  has  his  election  to  take  the 
continuance  on  the  terms  imposed,  or  to  reject  it  and  go  to  trial, 
and  that  if  he  goes  to  trial,  and  the  verdict  is  against  him,  and  he 
believes  the  court  erred  in  ruling  him  to  trial  when  he  had  shown 
a  good  cause  for  continuance,  he  may  have  the  judgment  of  the 
court  overruling  his  motion  revised  on  error  or  appeal,  after  mov- 
ing the  court  below  for  a  new  trial  on  the  ground  of  his  being  ruled 
to  trial  against  his  showing  for  a  continuance.6 

§  433.  Exceptions  to  rulings. 

Exceptions  to  the  rulings  of  the  court  on  a  motion  for  a  continu- 
ance must  be  saved  by  bill  of  exceptions,  and  urged  in  a  motion  for 
new  trial  or  in  arrest  of  judgment,  to  be  available  as  ground  of 
error.7  Though  the  judgment  sought  to  be  reversed  may  show  that 

1  Bryce  v.  Jones,  38  T.  205. 

2  Hyde  v.  State,  16  T.  445. 

3  Baker  v.  Johnson,  16  T.  133;  Tex.  &  Pac.  Ry.  Co.  v.  Hoskins,  2  App.  C.  C., 
§66. 

4Fiske  v.  Miller,  13  T.  224;  Page  v.  Arnim,  29  T.  53.  And  see  McMahon  v. 
Busby,  29  T.  191,  where  it  is  stated  that  the  question  is  not  settled.  See,  also,  a 
suggestion  in  G.,  H.  &  S.  A.  Ry.  Co.  v.  Home,  69  T.  643,  647  (9  S.  W.  Rep.  440), 
lrora  which  it  appears  that  an  admission  of  the  truth  of  the  proposed  evidence 
is  contemplated. 

s  Couts  v.  Neer,  70  T.  468  (9  S.  W.  Rep.  40). 

6  Burton  v.  Power,  4  T.  380. 

7  Rule  70:  Shaw  v.  Adams,  2  App.  C.  C.,  §  177;  Tex.  &  Pac.  Ry.  Co.  v.  McAllis- 
ter, 59  T.  349;  Morris  v.  Files,  40  T.  374;  Campion  v.  Angier,  16  T.  93;  Tex.  &  Pac. 
Ry.  Co.  v.  Mallon,  65  T.  115;  Robson  v.  Jones,  33  T.  324;  McMahan  v.  Busby,  29 
T.  191;  G.,  C.  &  S.  F.  Ry.  Co.  v.  Carter,  23  S.  W.  Rep.  1023;  Tex.  &  Pac.  Ry.  Co.  v. 
Dunn,  17  S.  W.  Rep.  822:  Strain  v.  Greer,  19  S.  W.  Rep.  513;  City  of  Sulphur 
Springs  v.  Weeks,  18  S.  W.  Rep.  489. 


§  4)53.]  COM  IM. \.\CE    OF    A    0&U8S.  411 

a  continuance  was  applied  for.  which  was  overruled,  and  exceptions 
to  the  action  of  the  court  taken,  if  there  be  no  bill  of  exceptions  in 
the  record  showing  the  action  of  the  court  and  the  circumstances 
attending  the  overruling  of  the  application  for  continuance,  the 
ruling  will  not  be  revised  on  appeal.1  One  reason  for  the  rule  is, 
that  the  trial  judge  should  have  an  opportunity  in  signing  a  bill 
of  exceptions  to  state  any  facts  which  may  have  come  to  his  knowl- 
edge, and  which  induced  him  to  overrule  the  motion.  It  is  held, 
also,  that  the  bill  of  exceptions  should  generally  set  out  in  full  the 
affidavit  on  which  the  motion  was  founded,  so  that  the  very  affi- 
davit on  which  the  ruling  was  made  may  be  identified.2 

When  by  an  amendment  of  the  petition  a  defendant  is  entitled 
to  a  continuance  on  the  ground  of  surprise,  such  continuance  must 
be  asked  for  and  exceptions  to  its  refusal  taken  and  shown  by  bill 
of  exceptions.  It  is  not  sufficient  to  raise  the  question  for  the  first 
time  in  the  motion  for  a  new  trial.3 

The  bill  of  exceptions  should  fully  state  the  grounds  on  which  the 
court  acted  in  overruling  the  application,  and  without  this  it  is  held 
that  the  appellate  court  might  well  refuse  to  examine  an  assign- 
ment of  error,  as  for  the  want  of  a  proper  bill  of  exceptions.4 

An  application  for  a  new  trial  because  of  the  refusal  of  a  contin- 
uance must  show  facts  constituting  a  meritorious  defense  which 
applicant  was  prevented  from  pleading,  and  such  statement  must 
be  sworn  to.5 

1  Philipowski  v.  Spencer,  63  T.  604. 

2  Bruckmiller  v.  Wolf,  37  T.  342. 

'Cunningham  v.  State,  74  T.  511  (12  S.  W.  Rep.  217);  Contreras  v.  Haynes,  61 
T.  103. 

<  Tex.  &  Pac.  Ry.  Co.  v.  Hardin,  62  T.  367. 
»  Hastings  v.  Winters,  26  S.  W.  Rep.  2S3. 


CHAPTER  XXIII. 


OF  APPEARANCE  DAY  AND  JUDGMENT  BY  DEFAULT. 


434.  Appearance  day;  call  of  docket. 

435.  Time  of  filing  answer. 

436.  Judgment     by    default,    when 

taken. 

437.  Where  some  of  the  defendants 

answer. 


438.  Form  of  judgment  by  default. 

439.  Effect  of  different  forms  of  judg- 

ment by  default. 

440.  What  admitted  by  a  default. 

441.  Judgment  by  default  set  aside, 

when. 


§  434.  Appearance  dcy;  call  of  docket. 

The  second  day  of  each  term  of  the  district  or  county  court  is 
termed  appearance  day.  It  is  the  duty  of  the  court  on  appearance 
day  of  each  term,  or  as  soon  thereafter  as  may  be  practicable,  to 
call  in  their  order  all  the  cases  on  the  docket  which  are  returnable 
to  such  term.1 

A  case  appealed  from  a  justice's  court  is  an  appearance  case,  and 
should  not  be  called  for  trial  until  appearance  day.  A  judgment 
against  the  defendant  on  the  first  day  of  the  term,  in  his  absence, 
is  error.2  The  statute  contemplates  that  such  a  case  should  be  called 
on  appearance  day,  and  no  judgment  by  default  can  be  taken  unless 
it  be  made  to  appear  that  five  days'  notice  of  the  appeal  has  been 
given  before  the  first  day  of  the  term.3  When  the  papers  in  such 
a  case  are  not  filed  in  the  appellate  court  on  or  before  the  first 
day  of  the  term  after  the  appeal  is  taken,  the  case  is  not  before  the 
court  for  disposition  at  that  term.4 

On  the  first  day  of  the  term  the  court  calls  the  docket  of  cases 
other  than  appearance  cases,  and  notes  whether  a  jury  trial  has 
been  demanded,  and  by  which  party.  This  is  the  time  to  demand 
a  jury  in  such  cases.5  The  docket  of  appearance  cases  is  called  on 
the  second  day  of  the  term  for  the  same  purpose,  and  a  jury  may 
then  be  demanded.6 

§435.  Time  of  filing  answer. 

In  all  cases  in  which  the  citation  has  been  personally  served,  at 
least  ten  days  before  the  first  day  of  the  term  to  which  it  is  return- 

*  R.  S.  1280,  1281. 

*Hadden  v.  Smith,  28  S.  W.  Rep.  458. 

3  R.  S.  1670. 

<R.  S.  1674;  Henson  v.  Martin,  2  App.  C.  C.,  §  272. 

6  R.  S.  3189,  3192. 

6R.  S.  3193. 


§  430.]  APPKAl:  \.N(  1.    DAY    AND    JL'lKrMKNT    J!V    DKI  AULT.  413 

able,  exclusive  of  the  days  of  service  and  return,  the  answer  of  the 
defendant  must  be  filed,  both  in  the  district  and  county  courts,  on 
or  before  the  second  day  of  the  return  term.1  In  all  cases  in  which 
service  of  the  citation  has  been  made  by  publication,  the  answer 
must  In-  tiled  on  or  before  appearance  day  of  the  term  next  succeed- 
ing that  to  which  such  citation  is  returnable.2 

In  order  to  compel  the  defendant  to  plead  at  the  return  term, 
where  there  is  personal  service  of  citation,  the  citation  must  be 
served  at  least  ten  days  before  the  first  day  of  the  return  term,  ex- 
clusive of  the  days  of  service  and  return.  If  there  is  not  time 
within  which  to  make  the  required  service,  the  officer  must  never- 
theless serve  the  citation  at  any  time  before  the  return  day,  and 
such  service  will  compel  the  defendant  to  plead  at  the  next  term  of 
the  court.3  A  defendant  has  a  right  to  file  his  ans\ver  at  any  time 
before  a  judgment  by  default  has  been  actually  announced  by  the 
court,4  or  at  any  time  prior  to  the  call  of  the  case  for  trial  or  final 
disposition,  if  an  interlocutory  judgment  by  default  has  not  been 
entered.5 

§  436.  Judgment  by  default,  when  taken. 

I'pon  the  call  of  the  appearance  docket,  or  at  any  time  after  ap- 
pearance day,  the  plaintiff  may  take  judgment  by  default  against 
any  defendant  who  has  been  duly  served  with  process  and  who  has 
not  previously  filed  an  answer.6 

AVhere  judgment  is  rendered  by  default,  the  court  assesses  the 
damages  if  a  jury  trial  is  not  demanded.  The  statute  provides  that 
the  defendant  may  demand  a  jury  whether  the  demand  be  liqui- 
dated and  proved  by  an  instrument  of  writing  or  not.7  The  plaint- 
iff may  also  demand  a  jury.8 

A  default  may  be  entered  on  the  call  of  the  appearance  docket 
against  a  defendant  who  has  not  answered,  but  if  he  asks  for  fur- 
ther time  within  which  to  file  his  answer,  the  whole  of  the  appear- 
ance day  may  be  allowed  him.9  It  is  held,  however,  that  under  the 
statute  requiring  a  defendant  to  file  his  answer  on  or  before  the 

i  R.  S.  1263. 

-'R.  S.  1264;  Burns  v.  Batey,  1  App.  C.  C.,  §  421. 

>  R.  S.  1228,  1229. 

<City  of  Jefferson  v.  Jones,  74  T.  635  (12  S.  W.  Rep.  749);  Ellett  v.  Britton,  6  T. 
229;  Hurlock  v.  Reinhardt,  41  T.  580;  Tally  v.  Thorn,  35  T.  7J7:  Wlu-ut  v.  David- 
son, 2  T.  196.  Where  it  does  not  appear  at  what  time  a  judgment  by  default 
was  rendered,  the  presumption  is  that  it  was  rendered  at  the  proper  time.  Look 
v.  Henderson,  4  T.  303. 

»  Boles  v.  Linthicum,  48  T.  220. 

6R.  a  1282. 

•  R.  S.  1284-1286. 

•  nt,  &  Mont,  Ry.  Co.  v.  Morris,  68  T.  49  (3  S.  W.  Rep.  457). 

»  E.  L.  &  R,  R.  Ry.  Co.  v.  Scott,  66  T.  565  (1  S.  W.  Rep.  663). 


414:      APPEARANCE  DAY  AND  JUDGMENT  BY  DEFAULT.   [§'§  437,  438. 

second  day  of  the  terra,  he  has  the  whole  of  the  second  day,  and 
that  judgment  cannot  be  entered  against  him  before  the  third  day.1 

§  437.  Where  some  of  the  defendants  answer. 

Where  there  are  several  defendants,  some  of  whom  have  an- 
swered and  others  have  made  default,  an  interlocutory  judgment 
by  default  may  be  entered  against  those  who  have  not  answered, 
and  the  cause  may  proceed  against  the  others;  but  only  one  final 
judgment  shall  be  given  in  the  suit.2 

Judgment  final  by  default  against  one  of  two  or  more  defendants 
cannot  be  entered  until  the  disposition  of  the  case  as  to  those  who 
have  answered.  An  interlocutory  judgment  by  default  establishes, 
as  against  the  party  in  default,  the  facts  properly  alleged  by  the 
plaintiff,  and  when  the  case  is  ready  for  final  disposition  authorizes 
the  entry  against  him  of  such  judgment  as  the  facts  alleged  warrant. 
But  until  this  stage  of  the  case  is  reached,  the  only  effect  of  the  in- 
terlocutory judgment  is  to  deprive  the  party  in  default  of  the  privi- 
lege of  filing  an  answer,  which  otherwise  he  might  do  at  any  time 
prior  to  the  call  of  the  case  for  trial  or  final  disposition.3 

§  438.  Form  of  a  judgment  by  default. 

Judgment  by  default  is  either  by  nil  dicit,  that  is,  where  the  de- 
fendant is  stated  to  have  appeared,  but  to  have  said  nothing  in  bar 
or  preclusion  of  the  action ;  or  by  non  sum  informatus,  where  he  is 
said  to  appear  by  attorney,  but  the  attorney  says  that  he  is  not  in- 
formed by  the  defendant  of  any  answer  to  be  given ;  or  it  is  for 
want  of  an  answer,  where  no  answer  has  been  filed,  or  where  one 
has  been  filed  which,  from  some  irregularity,  may  be  treated  as  a 
nullity.4 

The  withdrawal  of  defendant's  answer  is  equivalent  to  a  judg- 
ment nihil  dicit,  and  carries  with  it  more  strongly  the  admission  of 
the  justness  of  the  plaintiff's  cause  of  action  than  a  judgment  by 
default.  If  the  suit  be  on  a  promissory  note  described  in  the  peti- 
tion, the  clerk,  on  the  withdrawal  of  the  answer,  may  compute  the 
amount  due.5 

1  McKay  v.  Barlow,  4  App.  C.  C.,  §  299. 

2R.  S.  1283;  Martin  v.  Crow,  28  T.  613;  Clark  v.  Compton,  15  T.  32;  Peters  v. 
Crittenden,  8  T.  131. 

3  Boles  v.  Linthicum,  48  T.  220. 

4  2  Arch,  Pr.  27.    In  a  suit  on  a  promissory  note  one  of  the  defendants  filed  a, 
plea  in  abatement,  that  he  had  not  been  served  with  a  correct  copy  of  the  cita- 
tion and  petition.    Defendants  failing  to  appear  when  the  case  was  called,  the 
court  rendered  judgment  by  default.    It  was  the  duty  of  the  defendant  who 
filed  the  plea  to  be  present  to  submit  the  issue  and  support  it  with  affirmative 
proof.    The  court  was  not  required  to  attend  to  the  matter  for  him,  and  the  de- 
fault was  properly  rendered.    McKellar  v.  Lamkin,  22  T.  244. 

8  Graves  v.  Cameron,  77  T.  273  (14  S.  W.  Rep.  59). 


§§430,441'.]       AlTKAIIANt  K    DAY    ANI»    .1  U>«  ,M  KXT   BY    DEFAULT.  415 

§  439.  Effect  of  different  forms  of  judgment  by  default. 

A  judgment  by  nil  <licit,  or  by  non  •-•'///<  ''///'"/•////////*,  is  used  only 
in  cases  where  judgment  is  entered  in  pursuance  of  a  previous 
agreement  between  the  parties,  and  is  entitled  to  a  more  liberal 
construction  than  a  judgment  for  want  of  an  answer:  it  is  equiva- 
lent to  a  judgment  by  confession,  and  is  a  waiver  of  errors.1  The 
withdrawal  of  an  answer  upon  the  facts,  after  a  demurrer  over- 
ruled, is  not  equivalent  to  a  ///'/  <//<•//,  and  the  judgment  upon  de- 
murrer may  be  assigned  for  error.2  A  judgment  by  default  for 
want  of  an  answer  will  not  operate  as  a  waiver  of  any  error  ap- 
parent upon  the  record.3 

§  440.  What  admitted  by  a  default. 

A  judgment  by  default  admits  every  averment  in  the  petition  ex- 
cept the  amount  of  damages.4  A  judgment  by  default  in  an  action 

1  A  judgment  nil  dicit  is  a  species  of  judgment  by  default,  but  operates  as  a 
waiver  of  errors  that  the  latter  species  of  judgment  does  not.  It  is  considered 
as  a  waiver  of  all  objections  to  the  service  and  return  of  process,  and  of  mere 
irregularities  of  form  in  stating  the  cause  of  action,  and  of  incidental  facts,  and 
amounts  to  an  admission  of  the  cause  of  action  substantially  stated  in  the  peti- 
tion; and,  like  a  judgment  by  default,  the  amount  and  terms  of  the  judgment 
must  be  ascertained  by  reference  to  the  petition,  together  with  the  UMI  tl  pn* 
oeedings  had  upon  such  judgments:  that  is,  when  the  amount  claimed  is  un- 
liquidated, a  writ  of  inquiry  will  be  awarded,  or,  if  certain,  the  clerk  of  the  court 
will  compute  the  amount  evidenced  by  the  written  instruments,  and  a  judgment 
will  be  given  for  the  amount  thus  ascertained.  Therefore,  if  the  petition  does 
not  substantially  set  out  a  good  cause  of  action,  no  judgment  can  be  rendered 
upon  it.  Goodlett  -v.  Stamps,  29  T.  121:  Gilder  v.  Mc-Intvre,  29  T.  89;  Storey  v, 
Nichols,  22  T.  87;  Connelly  v.  Williams,  22  T.  645:  Cartwright  v.  Roff.  1  T.  ?8'r 
Wheeler  v.  Pope,  5  T.  262.  In  Burton  v.  Lawrence,  4  T.  373.  the  action  was  upon 
a  bond,  conditioned  for  the  delivery  of  certain  slaves,  the.  payment  of  their  hire, 
and  the  incurring  of  other  expenses  in  furnishing  clothing,  paying  taxes,  etc. 
The  breach  assigned  was  the  non-payment  of  the  hire  of  the  negroes  and  non- 
payment of  taxes,  which  sums,  the  plaintiff  alleged,  were  unpaid,  with  the  ex- 
ception of  $83.  The  defendants  withdrew  their  answers,  and  it  was  held 
equivalent  to  a  confession  of  a  judgment  for  a  sum  certain  to  be  ascertained  by 
reference  to  the  petition,  and  that  there  was  no  necessity  of  a  jury  to  ascertain 
the  amount  of  the  indel>te<int -ss.  Hurton  v.  Lawrence.  4  T.  373. 

In  a  suit  commenced  by  attachment,  the  property  -fixed  under  the  writ  hav- 
ing been  replevied.  a  motion  was  made  to  quash  the  attachment,  which  was 
overruled.  The  defendants  then  withdrew  their  plea  and  consented  that  tin- 
plaintiffs  have  judgment  tor  the  sum  >tated.  Judgment  was  then  rendered 
against  the  defendants  and  the  sureties  upon  the  ivplevy  Ixand.  On  appeal  liy 
the  sureties  on  the  replevy  bond,  it  was  held  that  the  court  erred  in  overruling 
the  motion  to  quash  the  attachment.  But  the  confession  of  judgment  was  held 
to  operate  as  a  release  of  all  errors  in  the  record,  and  as  binding  upon  the  secu- 
rities upon  the  replevy  bond  as  well  as  upon  their  principals.  Garner  v.  Bur- 
leson,  20  T.  348. 

2Frazier  v.  Todd,  4  T.  461;  Goodlett  v.  Stamps,  29  T.  121. 

» Goodlett  v.  Stamps,  29  T.  121 ;  Holland  v.  Cook,  10  T.  244 

4  Long  v.  Wort  ham,  4  T.  381:  Swift  v.  Faris.  11  T.  18;  Guest  v.  Rheim,  16  T. 
549;  Watson  v.  Newsham,  17  T.  437;  Prince  v.  Thompson,  21  T.  480;  Storey  v. 


410  APPEARANCE    DAY   AND   JUDGMENT   BY   DEFAULT.  [§  440. 

of  trespass  establishes  the  plaintiff's  right  to  recover,  and  fixes  the 
defendant's  liability ;  and  the  province  of  the  jury  is  simply  to  as- 
certain the  amount  of  damage  which  the  plaintiff  has  sustained  by 
reason  of  the  trespass.  And  where  there  are  several  defendants, 
the  judgment  by  default  fixes  the  liability  of  all.1  In  trespass  to 
trv  title  and  for  damages,  a  default  establishes  the  plaintiff's  right 
to  the  land ;  damages  could  be  waived.2 

While  the  allegations  of  the  pleading  of  one  in  whose  favor  a 
judgment  by  default  is  rendered  must  be  taken  as  proved,  yet  if  the 
pleading  does  not  set  forth  the  cause  of  action  as  to  names  of  par- 
ties, dates  and  amount  claimed,  so  as  to  enable  the  court  to  render 
judgment  without  resorting  to  evidence  aliunde,  no  judgment  by 
default  can  be  sustained.3  The  default  does  not  admit  anything 
beyond  the  definite  issuable  facts  well  pleaded  by  the  plaintiff.4 
Conventional  interest  will  be  allowed  as  alleged.5 

A  judgment  by  default  will  be  set  aside,  or  the  judgment  arrested, 
if  the  allegations  of  the  petition  are  not  set  forth  with  such  sub- 
stantial accuracy,  or  with  sufficient  certainty,  as  to  inform  the  court 
what  judgment  to  render  without  looking  for  information  to  proofs 
not  within  the  allegations,  or  where  the  petition  shows  -no  cause  of 
action.6 

richols,  22  T.  87;  Tarrant  v.  Lively,  25  T.  Sup.  399;  Welch  v.  Holmes,  2  U.  C. 
A-2:  Johnson  v.  Bowling,  1  App.  C.  C.,  §  1090. 

1  Clark  v.  Compton,  15  T.  32. 

2  Welch  v.  Holmes,  2  U.  C.  342.    In  a  suit  on  a  note  and  mortgage  the  default 
admits  the  execution  of  the  mortgage,  and  the  court  can,  without  the  interven- 
tion of  a  jury,  render  judgment  for  the  amount  of  the  note  and  for  the  sale  of 
the  mortgaged  property.    Ricks  v.  Pinson,  21  T.  507;  Morrison  v.  Van  Bibber,  25 
T.  Sup.  153.    In  a  suit  on  a  note  purporting  to  have  been  given  for  the  purchase 
of  land,  which  is  fully  described  in  the  petition,  on  default,  judgment  will  be 
given  for  the  amount  of  the  note  and  sale  of  the  land.    Niblett  v.  Shelton,  28  T. 
548.    But  to  support  a  judgment  of  foreclosure,  the  petition  must  fully  describe 
the  property  to  be  sold.    Pressley  v.  Testard,  29  T.  199. 

sKimmarle  v.  Railway  Co.,  76  T.  686(12  S.  W.  Rep.  698);  Mason  v.  Slevin,  1 
App.  C.  C.,  §  11. 
<  Hawkins  v.  Haney/1  App.  C.  C.,  §  723. 

5  Whittaker  v.  Wallace,  2  App.  C.  C.,  §  560.    A  petition  on  a  note  did  not  al- 
lege conventional  interest,  and  the  prayer  was  for  legal  interest.    A  judgment 
by  default,  giving  ten  per  cent,  interest,  the  rate  stipulated  in  the  note,  was  re- 
versed and  rendered  for  legal  interest.    Graves  v.  Farquhar,  20  T.  455. 

6  Johnson  v.  Dowling,  1  App.  C.  C.,  §  1091,  citing  Hall  v.  Jackson,  3  T.  305; 
Johnson  v.  Davis,  7  T.  173.    Where  the  petition  prays  for  the  setting  aside  of  an 
alleged  fraudulent  transfer  of  property,  a  money  judgment  is  not  authorized. 
Carpenter  v.  Knapp,  1  App.  C.  C.,  §  1111. 

The  allegations  in  the  petition  must  be  sufficient  to  constitute  a  legal  basts  on 
which  to  predicate  the  judgment.  Hall  v.  Jackson,  3  T.  305;  Pressley  v.  Testard, 
29  T.  199.  It  must  appear  that  the  writing  produced  is  the  one  set  out  in  the 
petition,  otherwise  the  court  will  not  permit  it  to  be  the  foundation  of  any  as- 
sessment by  the  clerk.  But  mere  clerical  variances,  or  other  matters  by  which 
the  rights  of  the  parties  would  not  be  materially  affected,  are  to  be  disregarded, 


ll.]      APPF.ARAKCE  DAY  AND  JUDGMENT  BY  DEFAULT.         417 

A  defendant  against  whom  a  judgment  by  default  has  been  ren- 
dered cannot  complain  that  plaintiff's  claim  for  damages  is  excess- 
ive, if,  after  overruling  his  application  to  set  aside  the  default,  the 
court  permitted  him  to  introduce  evidence  to  chow  the  true  extent 
of  damage  sustained.1  It  seems  that  if  the  contract  sued  on  is  void 
on  its  face,  the  court  will  so  declare ; 2  and  a  judgment  for  usurious 
interest  is  erroneous.1 

A  sworn  claim  for  damages  is  not  an  account  within  the  meaning 
of  the  statute,4  and  the  items  therein  and  the  amount  claimed  thereby 
are  not  admitted  by  a  default.  Other  proof  than  such  claim  must 
be  offered  to  support  a  judgment.*  An  account  must  be  verified  as 
required  by  statute  to  support  a  judgment  by  default.6 

The  petition  must  show  that  the  court  has  jurisdiction.7 

§  441.  Judgment  by  default  set  aside,  when. 

A  judgment  by  default  may  be  set  aside  on  motion  of  the  de- 
fendant, when  it  is  shown  that  there  was  a  good  defense,  and  good 
grounds  are  shown  why  it  was  not  set  up  at  the  proper  time.8  But 
it  will  not  be  set  aside  on  the  ground  merely  that  the  defendant's 
attorney,  through  mistake,  supposed  that  no  defense  was  to  be 
made ; 9  or  to  let  him  in  to  plead  the  statute  of  limitations.10  A  judg- 
ment by  default  will  be  set  aside  or  arrested,  where  the  petition 
does  not  set  forth  a  cause  of  action  with  substantial  accuracy,  or 
with  sufficient  certainty  to  inform  the  court  what  judgment  to 
render,  without  looking  for  information  to  proofs  not  within  the 
allegations.11  A  motion  to  set  aside  or  arrest  the  judgment  must 

It  was  therefore  held  that  it  was  not  sufficient  ground  for  reversing  a  judgment 
by  default,  that  the  petition  described  a  note  dated  January  3,  1855,  to  become 
due  on  the  1st  of  March  next,  and  the  note  on  which  the  judgment  was  ren- 
dered was  dated  January  3,  1856,  to  become  due  on  the  1st  of  March  next. 
Trabue  v.  Stonum,  20  T.  453. 

In  an  action  on  a  life  insurance  policy,  where  the  petition  alleges  payment  of 
premium,  proof  of  payment  need  not  be  made  to  support  a  judgment  by  default 
Union  Cent  Life  Ins.  Co.  v.  Lipscomb,  27  S.  W.  Rep.  307. 

1  H.  &  T.  C.  Ry.  Co.  v.  Burke,  55  T.  323. 

'Mosely  v.  Smith,  21  T.  441. 

»  Campbell  v.  State  Central  Bank,  1  App.  C.  C.,  §  378, 

«  R.  a  2323. 

«  H.  &  T.  C,  Ry.  Co.  v.  White,  1  App.  C.  C.,  §  164;  T.  &  P.  Ry.  Co.  v.  Looby,  1 
App.  C.  C.,  §  577. 

6  Duer  v.  Endres.  1  App.  C.  C.,  §  323. 

T  Rogers  v.  Harrison,  1  App.  C.  C,,  g  494 

« Watson  v.  Newsham,  17  T.  437;  Goss  v.  McClaren,  17  T.  107;  Foster  v.  Martin, 
20  T.  118;  Dowell  v.  Winters,  20  T.  793;  Tarrant  Co.  v.  Lively.  25  T.  Sup.  399; 
Aldridge  v.  Mardoff,  32  T.  204;  Jones  v.  Langham,  83  T.  604.  The  nature  of  the 
defense  must  be  shown  by  the  affidavit  Ellis  v.  Bonner,  27  S.  W.  Rep.  687. 

»  Crammond  v.  Roosevelt,  2  John.  Gas.  282;  Scrivner  v.  Malone,  30  T.  77i 

»°  Foster  v.  Martin,  20  T.  118;  Dowel!  v.  Winters,  20  T.  79i 

11  Hall  &  Jones  v.  Jackson,  3  T.  305;  Johnson  v.  Davis,  7  T.  173. 
2? 


418  APPEARANCE    DAY   AND   JUDGMENT   BY   DEFAULT.  [§  441. 

be  made  within  two  days  after  final  judgment  is  entered.1  When 
a  motion  to  set  aside  the  judgment  was  filed  thirty-one  days  after 
default,  but  within  two  days  after  the  writ  of  inquiry  was  executed 
and  judgment  final  was  rendered,  it  was  held  to  be  in  time.2 

A  motion  to  set  aside  a  judgment  by  default  must  be  decided  at 
the  term  at  which  it  is  filed.  If  it  goes  over  to  the  next  term,  it  is 
discharged  by  operation  of  law.3 

Where  it  is  shown  that  a  party  in  default  was  not  negligent,  but 
acted  in  good  faith,  and  that  lie  suffered  a  default  through  mistake 
and  ignorance  of  the  law,  a  state  of  facts  is  shown  which  makes  it 
inequitable  to  permit  the  judgment  to  stand.4 

Where  a  judgment  by  default  is  set  aside  at  the  term,  at  which  it 
was  rendered,  the  action  of  the  court  will  not  be  revised,  unless  it 
should  be  made  to  appear  that  the  court  had  abused  its  discretion 
to  the  injury  of  the  opposite  party.5 

1  R  S.  1373;  Foster  v.  Martin,  20  T.  118.    In  Aldridge  v.  Mardoff,  32  T.  204,  it  is 
said  to  be  a  matter  of  discretion  in  the  court  below  whether  it  will  entertain  a 
motion  for  a  new  trial  which  was  entered  after  the  lapse  of  two  days  after  judg- 
ment was  rendered,  but  satisfactory  grounds  for  the  delay  must  be  shown. 

2  Edwards  v.  James,  13  T.  52. 

3  R  S.  1374;  Thomas  v.  Neel,  4  App.  C.  C.,  §  291,  citing  McKean  v.  Ziller,  9  T. 
58,  and  Laird  v.  State,  15  T.  317.    It  is  held  that  where  an  action  is  brought  to 
set  aside  a  judgment  by  default  the  proceedings  should  show  why  relief  was  not 
sought  at  the  term  at  which  the  judgment  was  rendered.  Rodriguez  v.  Espinosa, 
25  S.  W.  Eep.  669. 

4  Marx  v.  Epstein,  1  App.  C.  C.,  §  1317.    A  judgment  by  default  on  an  open  ac- 
count should  have  been  set  aside  when,  two  days  after  the  judgment  was  taken, 
the  defendant,  in  an  uncontradicted  affidavit  in  support  of  his  motion,  showed 
the  serious  sickness  of  the  attorney  to  whom  his  defense  was  confided  at  the 
time  the  answer  should  have  been  filed,  and  his  own  sickness  then  and  at  the 
time  of  making  the  motion,  coupled  with  a  specific  statement  of  a  meritorious 
defense,  sufficient,  if  proved,  to  have  defeated  the  action.    Goodhue  v.  Meyers, 
58  T.  405.    A  party  to  an  action  for  the  trial  of  the  right  of  property,  whose  at- 
torney, after  entering  an  appearance,  had  abandoned  the  case  before  pleading, 
received  from  the  attorney  of  the  opposing  party  the  promise  that,  under  the 
circumstances,  he  would  take  no  action  in  the  case  without  notifying  him.    He 
was  notified,  but  the  notice  was  so  short  that  he  could  not  reach  the  court-house 
in  time  to  prevent  a  judgment  against  him.    It  was  held  that  the  judgment  by 
default  should  have  been  set  aside,  and  this  though  it  was  taken  on  the  applica- 
tion of  the  partner  of  the  attorney  who  had  promised  to  give  notice.    Field  v. 
Fowler,  62  T.  65.    A  default  judgment  was  properly  set  aside  where  the  war- 
rantor, a  party  defendant,  agreed  to  defend  the  possessor's  title,  and  was  ready 
to  do  so,  but  was  told  by  plaintiff's  counsel  that  the  suit  had  been  dismissed,  for 
him  to  go  home  and  do  nothing  more  in  the  matter,  and  the  warrantor  relied  on 
this  statement  and  so  informed  the  possessor,  and  they  made  no  further  defense. 
Where  the  attorney  knew  the  relation  between  warrantor  and  possessor,  and 
they  were  induced  to  act  on  his  statement,  that  the  statement  was  fraudulently 
made  and  known  by  the  attorney  to  be  false,  need  not  be  proved.    Rodriguez  v. 
Espinosa,  25  S.  W.  Rep.  669. 

sNorthington  v.  Tuohy.  2  App.  C.  C.,  S  327,  citing  Sweeney  v.  Jarvis,  6  T.  39; 
Goss  v.  McClaren,  17  T.  117;  Spencer  v.  Kennard,  12  T.  180.  The  rule  is  that  the 
action  of  the  lower  court  in  granting  a  new  trial  will  not  be  revised.  Puckett  v. 
Reed,iS  T.  SOS;  Freeman  v.  Miller,  53  T.  372;  Marx  v.  Epstein,  1  App.  C.  C.,  §  1317. 


CHAPTER  XXIY. 


CALL  OF  CASES  —  ISSUES  OF  LAW. 


442.  Call  of  cases  for  trial;  to  be  tried 

when  called. 

443.  Day  set  for  jury  docket;  demur- 

rers, etc.,  to  be  disposed  of; 
summoning  jurors. 
444  Call  of  non-jury  docket. 

445.  Issues  of  law  and  dilatory  pleas, 

when  disposed  of. 

446.  Motions  and  exceptions  to  mer- 

its, when  decided. 


447.  Exceptions  undisposed  of  on  call 

of  case;  deemed  waived,  when; 
costa 

448.  Trial  amendment;  repleader;  no 

trial  on  immaterial  issue. 

449.  Synopsis  of  pleadings  may  be 

made  up  and  read. 

450.  Abandonment  of  part  of  cause 

of  action. 


§  442.  Call  of  cases  for  trial;  to  be  tried  when  called. 

All  suits  in  which  final  judgments  have  not  been  rendered  by  de- 
fault must  be  called  for  trial  in  the  order  in  which  they  stand  on 
the  docket  to  which  they  belong,  unless  otherwise  ordered  by  the 
court.  Every  suit  must  be  tried  when  it  is  called,  unless  it  be  con- 
tinued, or  be  postponed  to  a  future  day  of  the  term,  or  be  placed  at 
the  end  of  the  docket,  to  be  called  again  for  trial  in  its  regular 
order.1 

"Without  the  consent  of  the  judge  parties  cannot  agree  to  set  a 
case  for  trial  on  any  day  of  the  term  other  than  upon  its  regular  call 
upon  the  docket.2  A  postponement  of  a  case  when  called  is  within 
the  discretion  of  the  court.3 

The  statute 4  contemplates  that  cases  shall  be  docketed  and  num- 
bered in  the  order  in  which  the  petitions  are  filed.  In  making  up 
the  jury  civil  docket  the  same  order  should  be  observed  as  on  the 
general  docket,  and  the  provisions  of  article  1287  of  the  Revised 
Statutes  should  be  complied  with  in  the  disposition  of  cases  on  that 
docket,  unless  for  good  cause  shown  the  court  should  otherwise 
direct.  If,  through  inadvertence,  the  clerk  shall  not  place  cases  on 
the  jury  docket  in  their  proper  order,5  then  in  calling  cases  for  trial 
they  should  be  called  in  their  proper  order  as  determined  by  num- 
ber. In  Kirkland  v.  Sullivan,  43  T.  233,  it  was  held  reversible  error 
to  call  and  force  a  party  to  try  a  cause  out  of  its  order;  but  the  stat- 

i  R.  S.  1287,  1288. 

SHolliday  v.  Holliday,  72  T.  581  (10  S.  W.  Rep.  690). 
3Capt  v.  Stubbs,  68  T.  222  (4  S.  W.  Rep.  467). 
*R.  S.  1177-1179. 
S.  3193. 


•120  CALL   C7   OASES  —  ISSUES  OF   LAW.  [§443. 

ute  in  force  when  that  case  was  tried  is  unlike  that  now  in  force,  in 
that  it  required  all  cases  to  be  tried  in  their  order,  "unless  other- 
wise ordered  by  the  court,  with  the  consent  of  the  parties  or  their 
attorneys" l  The  statute  now  in  force  recognizes  the  power  of  the 
court  to  require  a  ciuse  to  be  tried  out  of  its  order,  without  refer- 
ence to  the  consent  of  the  parties.  The  exercise  of  this  power  may 
be  revised  on  appeal,  but  it  is  incumbent  on  the  party  seeking  a 
revision  of  the  action  of  the  court  in  this  respect  to  show  that  ho 
was  injured  by  the  ruling.2  «* 

Without  undertaking  to  decide  exactly  how  and  when  the  order 
shall  be  made  that  relieves  a  case  from  the  express  requirement  that 
it  shall  be  called  for  trial  in  the  order  in  which  it  stands  on  the 
docket,  it  is  held  that  the  act  alone  of  trying  such  case  when  called 
up  before  its  time  by  one  of  the  parties  is  not  equivalent  to  such 
order.  It  is  doubted  whether  an  established  practice  without  a 
previous  order  of  taking  up  a  class  of  cases  out  of  their  order  can 
under  any  circumstances  be  regarded  as  equivalent  to  or  dispensing 
with  such  an  order.3 

§  443.  Day  set  for  jury  docket;  demurrers,  etc.,  to  be  disposed  of; 
summoning  jurors. 

The  court,  by  an  order  entered  on  the  minutes,  designates  a  day 
of  the  term  for  taking  up  for  trial  the  causes  on  the  jury  civil  docket 
at  all  subsequent  terms,  until  changed  by  a  like  order;  but.  in  case 
of  change,  it  shall  not  take  effect  until  the  succeeding  term  of  the 
court.  In  all  cases  in  which  juries  have  been  demanded  by  either 
party,  all  questions  of  law,  demurrers,  exceptions  to  pleadings,  etc., 
must,  as  far  as  practicable,  be  heard  and  determined  by  the  court 
before  the  day  designated  for  the  trial  of  said  jury  causes,  and  all 
jurors  must  be  summoned  to  appear  on  the  day  of  the  term  so  des- 
ignated.4 

A  jury  docket  is  required  to  be  kept  by  the  clerks  of  the  district 
and  county  courts,  and  cases  in  which  a  jury  has  been  allowed  are 
entered  therein  in  their  order.5 

1  P.  D.  1461. 

*Mo.  Pac.  Ry.  Co.  v.  Shuford,  72  T.  165  (10  S.  W.  Rep.  408). 

3  Bostvvick  v.  Bostwick,  73  T.  183.    A  party  cannot  complain  at  the  second 
calling  for  trial  at  the  same  term  of  a  cause  upon  the  jury  docket  which  had 
been  passed  to  the  end  of  the  docket,  when  all  cases  preceding  it  at  the  time  it 
was  so  passed  had  been  tried  or  continued,  although  other  cases  placed  upon 
the  docket  subsequent  to  the  passing  of  the  case  were  not  disposed  of.    Pac. 
Expr.  Co.  v.  Real  Estate  Ass'n,  81  T.  81  (16  S.  W.  Rep.  792). 

4  R.  S.  1289,  3199. 

5R.  S.  3198.  In  Tex.  Cent.  Ry.  Co.  v.  Rowland,  3  Civ.  App.  158  (22  S.  W.  Rep. 
134),  it  was  held  that  the  court  did  not  err  in  requiring  defendant  to  go  to  trial 
on  the  second  day  of  the  term,  though  the  case  was  a  jury  case  and  no  day  had 
been  fixed  for  calling  the  jury  docket. 

When  April  20,  1891,  was  the  day  for  hearing  and  deciding  questions  of  law, 


U,  445.]  CALL   OF  CASES  —  ISSUES   OF  LA.W.  421 

?'  444.  Call  of  non-jury  docket. 

The  docket  of  cases  in  which  jury  trials  have  not  been  granted 
may  he  taken  up  at  such  times  and  in  such  manner  as  not  unneces- 
sarily to  interfere  with  the  dispatch  of  business  on  the  jury  docket.1 

§  445.  Issues  of  law  and  dilatory  pleas,  when  disposed  of. 

Pleas  to  the  jurisdiction,  pleas  in  abatement,  and  other  dilatory 
pleas  and  demurrers,  not  involving  the  merits  of  the  case,  must  be 
determined  during  the  term  at  which  they  are  filed,  if  the  business 
»>f  the  court  will  permit.2 

It  is  provided  by  rule  that  all  dilatory  pleas,  and  all  motions  and 
exceptions  relating  to  a  suit  pending,  which  do  not  go  to  the  merits 
of  the  case,  must  be  tried  at  the  first  term  to  which  the  attention 
of  the  court  is  called  to  them,  unless  passed  by  agreement  of  parties 
with  the  consent  of  the  court;  and  that  all  such  pleas  and  motions 
must  be  first  called  and  disposed  of  before  the  main  issue  on  the 
merits  is  tried.3 

When  a  case  is  called  for  trial,  the  issues  of  law  arising  on  the 
pleadings,  and  all  pleas  in  abatement,  and  other  dilatory  pleas  re- 
maining undisposed  of,  must  be  determined,  and  it  is  not  a  cause 
for  the  postponement  of  a  trial  of  the  issues  of  law  that  a  party  is 
not  prepared  to  try  the  issues  of  fact.4 

The  sufficiency  of  the  pleadings  ought  to  be  settled  before  pro- 
ceeding on  the  merits,  and  the  practice  of  attacking  the  pleadings 
on  the  trial  by  objecting  to  the  evidence  is  discountenanced,  as  tend- 
ing to  confusion,  uncertainty  and  delay.5 

A  plea  of  personal  privilege  must  be  disposed  of  at  the  first  term 
after  it  is  filed,  unless  other  business  prevents  its  consideration,  or 
it  is  continued  by  consent  of  parties.8  Pleas  and  demurrers  not 
called  to  the  attention  of  the  court  and  disposed  of  are  deemed 
waived;7  the  rule  applies  to  a  plea  of  another  action  pending.8 

liy  the  custom  and  usage  of  the  court,  in  jury  cases,  and  on  that  day  the  docket 
was  called  and  all  parties  given  opportunity  to  present  their  exceptions,  and 
none  were  presented  to  the  answer  of  a  defendant,  which  had  been  on  file  since 
November  21,  1890,  but  on  the  day  of  trial,  April  23,  1891,  exceptions  were  filed 
by  the  plaintiff,  and  after  announcement  of  ready  for  trial  action  by  the  court 
upon  them  was  sought,  the  refusal  of  the  court  to  entertain  them  was  not  an 
abuse  of  its  judicial  discretion,  Briggs  v.  Rush,  1  Civ.  App.  19  (20  S.  W.  Rep.  771). 

1  R.  8. 1290. 

2  R  a  1269. 

3  Rule  24;  Huffman  v.  Hardeman,  1  S.  W.  Rep.  575. 
«R.&  1291. 

s  Booth  v.  Pickett,  53  T.  436;  Carter  v.  Roland,  53  T.  540;  Harris  v.  Spence,  70 
T.  616  (8  a  W.  Rep.  313). 

6Oreswell  Ranche  &  Cattle  Co.  v.  Waldstein,  28  S.  W.  Rep.  260. 

"  Sup.  Cotn'd'y  Knights  of  Golden  Rule  v.  Rose,  62  T.  321;  Floyd  v.  Rice,  28  T. 
341:  Rowlett  v.  Fulton,  5  T.  458;  Chambers  v.  Miller,  9  T,  236;  Bonner  v.  Glenn, 
79  T.  531  (15  S.  W.  Rep.  572). 

>  .Maxwell  v.  First  Nat.  Bank,  24  S.  W.  Rep.  848. 


422  CALL   OF   CASES  —  ISSUES   OF   LAW.  [§§  416-448. 

§  446.  Motions  and  exceptions  to  merits,  when  decided. 

All  motions  which  go  to  the  merits  of  the  case,  and  all  excep- 
tions, general  and  special,  which  relate  to  the  substance  or  to  the 
form  of  the  pleadings,  must  be  decided  at  the  first  term  of  the  court 
when  the  case  is  called  in  the  regular  order  for  trial  on  the  docket, 
if  reached,  whether  there  be  an  announcement  on  the  facts  or  not, 
unless  passed  by  agreement  of  parties  with  the  consent  of  the 
court.1 

"Where  general  and  special  demurrers  to  an  amended  original 
petition  were  filed  at  the  term  of  the  court  at  which  they  were  dis- 
posed of,  although  not  filed  until  two  terms  after  the  filing  of  the 
amended  petition  itself,  it  was  held  that  the  above  rule  had  no  ap- 
plication. The  action  of  the  court  in  overruling  a  demurrer  is  not 
a  final  adjudication,  and  it  is  proper  for  the  court  at  a  later  term, 
on  renewal  of  the  demurrer  during  the  pendency  of  the  cause,  to 
revise  the  former  ruling  if  erroneous.  Thus,  general  and  special 
demurrers  to  an  original  petition  were  overruled,  and  at  the  third 
term  of  the  court  afterwards  were  sustained  to  the  first  amended 
petition,  which  plaintiff  claimed  contained  substantially  the  same 
cause  of  action  as  the  original  petition.2 

§447.  Exceptions  undisposed  of  on  call  of  case;  deemed  waived, 
when;  costs. 

When  the  case  is  called  for  trial,  the  exceptions,  if  any  remain 
undisposed  of,  must  be  presented  for  determination,  and  must  then 
be  decided  before  proceeding  to  the  trial  of  the  case  on  the  facts ; 
if  not  presented,  they  will  be  adjudged  waived,  and  must  be  so  en- 
tered on  the  minutes  of  the  court,  the  cost  of  filing  to  be  taxed 
against  the  party  filing  them,  and  they  will  constitute  no  part  of 
the  final  record,  unless  some  question  be  raised  upon  the  action  of 
the  court  in  reference  to  them,  and  they  are  presented  in  a  bill  of 
exceptions.3 

§  448.  Trial  amendment;  repleader;  no  trial  on  immaterial  issue. 

When  the  exceptions  have  been  presented  and  decided,  leave  may 
be  granted  to  either  or  both  parties  to  file  an  amendment  in  one 
instrument  of  writing,  separate  from  those  which  had  been  pre- 
viously filed  by  each,  which  shall  close  the  pleadings  in  the  case,  to 
be. then  determined  by  the  court,  so  as  to  decide  all  the  questions 
of  sufficiency  arising  upon  them.  In  making  this  amendment,  the 
party  must  refer  distinctly  to  such  instrument  as  he  desires  to 
amend,  by  name  and  number,  as  in  the  other  amendments,  without 
repleading  the  whole  of  it,  but  may  succinctly  state  such  additional 

1  Rule  25. 

2  Burrows  v.  Gonzales  County,  5  Civ.  App.  232  (23  S.  W.  Rep.  829). 
8  Rule  26. 


I  440.]  gALL  OF  CASES  —  ISSUES  OF  LAW.  423 

facts  to  be  added  thereto  as  he  may  desire.  This  amendment  is 
styled  and  indorsed  "  plaintiffs"  or  "  defendant's  trial  amendment." 
If  the  case  should  not  be  then  tried,  the  party  or  parties  shall  re- 
plead,  as  in  other  cases  of  amendment.1 

The  court,  when  deemed  necessary  in  any  case,  may  order  a  re- 
pleader  on  the  part  of  one  or  both  of  the  parties,  in  order  to  make 
their  pleadings  conform  substantially  to  the  rules.3  .  The  court  is 
not  required  to  allow  a  case  to  go  to  trial  on  the  facts  when  the 
pleadings  are  obviously  so  defective  that  a  material  issue  has  not 
been  formed ;  in  such  case  the  court  must  call  the  attention  of  the 
parties  to  such  immaterial  issue,  so  that  the  time  of  the  court  may 
not  be  wasted.4 

It  was  not  intended  by  the  rules  that  a  trial  amendment  should 
be  made  to  include  pleadings  which  were  not  demanded  by  the  rul- 
ings of  the  court  upon  exceptions  filed  to  other  pleadings.  A  trial 
amendment  conies  too  late  after  the  parties  have  entered  upon  the 
trial ;  when  it  is  offered  after  a  jury  is  partially  impaneled  it  should 
not  be  allowed.*  It  is  no  cause  of  complaint  that,  after  exceptions 
had  been  overruled,  a  trial  amendment  was  allowed  supplying  in 
detail  the  defects  attacked  by  the  exceptions.  Such  action  is  not 
in  conflict  with  rule  27.5 

When  a  case  is  called  for  trial  and  exceptions  to  the  answer  are 
sustained,  a  trial  amendment  is  the  proper  technical  pleading  in 
order.  The  court  has  the  discretion  to  relax  the  rule  in  the  inter- 
est of  justice.  It  may  allow  an  original  amended  answer  to  be  filed. 
If  new  matter  be  then  set  up  that  plaintiff  is  not  prepared  to  meet 
by  pleading  or  evidence,  he  may  amend,  and  even  continue  the 
cause  if  necessary.  Such  amendment,  no  injury  being  shown,  is  not 
error.6  A  trial  amendment  by  leave  of  the  court  may  be  filed 
whether  the  demurrer  to  the  pleading  amended  be  sustained  or 
overruled  by  the  court.7 

5  449.  Synopsis  of  pleadings  may  be  made  up  and  read. 

When  the  questions  of  law,  if  any,  have  been  determined  by  the 
court,  the  judge  may,  before  proceeding  to  trial,  by  the  aid  of  the 
counsel,  have  the  pleadings  that  have  been  held  sufficient,  or  have 
not  been  excepted  to,  read  over,  if  deemed  necessary,  and  may  make 
a  brief  memorandum  of  the  facts  stated  or  issues  presented  in  the 
pleadings,  and  may  read  them  out  before  the  trial  commences,  so  as 

1  Rule  27. 

2  Rule  29. 
'Rule  32. 

4Contreras  v.  Haynes,  61  T.  103. 

»  Moore  v.  Moore,  73  T.  382  (11  S.  W.  Rep.  396). 

6  Radam  v.  Capital  Microbe  Destroyer  Co..  81  T.  122  (16  S.  W.  Rep.  990). 
"  Tex.  &  Pac.  Ry.  Co.  v.  Huffman,  83  T.  286  (18  S.  W.  Rep.  741). 


424  CALL    OF   CASES  —  ISSUES   OF   LAW.  [§  450. 

to  inform  the  parties  of  the  view  which  is  entertained  by  the  judge 
of  the  matters  of  fact  in  issue  as  presented  by  their  pleadings,1 

§  450.  Abandonment  of  part  of  cause  of  action. 

A  party  who  abandons  any  part  of  his  cause  of  action  or  defense, 
as  contained  in  the  pleadings,  may  have  that  fact  entered  of  record, 
so  as  to  show  that  the  matters  therein  were  not  tried.  He  will  bo 
taxed  with  the  cost  incurred  upon  the  pleading  so  abandoned ;  also 
with  the  cost  incurred  upon  pleading  in  support  of  which  no  evi- 
dence was  offered,  to  be  determined  by  the  court  on  motion  at  the 
term  of  the  trial,  and  not  afterwards.2  Parties  in  open  court  may 
withdraw  from  a  suit  on  trial  matters  which  would  otherwise  be 
concluded  by  the  judgment.3 

1  Eule  28. 

2  Rule  33. 

3  Freeman  v.  McAninoh,  6  Civ.  App.  644  (24  S.  W.  Rep.  922). 


CHAPTER  XXV. 
TRIAL  BY  THE  COURT. 

§  451.  General  rules.  I  §  453.  Case  submitted  to  judge  to  be 

458.  Agreed  case.  decided  during  the  term. 

§451.  General  rules. 

The  rules  prescribed  for  the  trial  of  causes  before  the  jury  gov- 
ern in  trials  by  the  court  so  far  as  they  are  applicable.1  Xo  jury 
trial  is  allowed  in  any  case  unless  application  be  made  therefor  and 
the  jury  fee  deposited  as  provided  by  law.3 

Where  the  trial  is  by  the  court,  the  judge  is  required,  at  the  re- 
quest of  either  party,  to  state  in  writing  the  conclusions  of  fact 
found  by  him  separately  from  the  conclusions  of  law;  and  the  con- 
clusions both  of  fact  and  of  law  must  be  filed  with  the  clerk,  and 
constitute  a  part  of  the  record.3 

The  trial  by  the  court  is  conducted  in  the  same  manner  as  the 
trial  by  jury.  The  examination  of  witnesses  is  conducted  in  the 
same  manner,  and  objections  to  the  testimony  made  in  the  same 
way.4  The  admission  of  incompetent  evidence  is  not  gene  rally  a 
ground  for  reversal,  unless  it  is  manifest  that  it  had  an  influence 
upon  the  finding  of  the  court.5  In  some  cases  it  is  held  that  if  im- 
proper evidence  is  admitted  over  objections,  and  there  is  nothing  in 
the  record  to  show  that  it  was  not  considered  by  the  judge  in  de- 
ciding the  issue,  the  court  on  appeal  cannot  say  that  he  was  not 
influenced  by  the  evidence,  and  hence  must  hold  that  there  was 
error;6  it  must  appear  from  the  record  that  the  judge  finally  con- 

i  R.  S.  1292. 

2R.&3188.  3189,  8194,3195. 

»  R.  S.  1388. 

4  The  rules  which  regulate  the  admission  of  evidence  in  trials  by  jury  do  not 
apply  strictly  where  the  trial  of  the  fact  is  by  the  court.  The  court  will  dis- 
criminate between  evidence  which  is  competent  to  establish  or  disprove  the 
issue,  and  that  which  is  not;  and  though  incompetent  evidence  may  have  been 
heard  by  the  court,  it  will  not  be  a  ground  of  reversal  of  the  judgment,  if 
rightly  rendered,  upon  evidence  which  is  competent,  Smith  v.  Hughes.  2'3  T. 
248;  Beaty  v.  Whituki-r,  '22  T.  526;  Milton  v.Cobb,  31  T  539;  Millican  v.  Milli<  .m. 
34  T.  426;  Clayton  v.  MrKinnon,  54  T.  206;  Schleicher  v.  Markward,  61  T.  99; 
Cairrell  v.  Higgs,  1  U,  C.  58;  Sharp  v.  Schmidt,  62  T.  263;  Garcia  v.  Gray,  67  T. 
232  (3  S.  W.  Rep.  42);  Beham  v,  Ghio,  75  T,  87  (12  8.  W.  Rep.  996);  Ballast t-r  v. 
Mann,  24  S.  W.  Rep.  561, 

s  Moore  v.  Kennedy,  81  T.  144  (16  S.  W.  Rep.  740);  Andrews  v.  Key,  77  T.  35  (13 
8.  W.  Rep.  640). 

« Wagoner  v.  Rupley,  69  T.  700  (7  8,  W,  Rep.  80), 


42C  TKIAL   BY   THE   COURT.  [§  452. 

eluded  that  the  evidence  was  illegal,  and  did  not  consider  it  in  his 
decision  of  the  case.1  If  it  is  evident  that  the  court  based  its  find- 
ing on  other  and  sufficient  evidence,  the  admission  of  improper  evi- 
dence becomes  immaterial.2 

The  decision  of  the  judge  is  entitled  to  the  same  presumptions  in 
its  favor  as  are  indulged  in  favor  of  the  verdict  of  a  jury.3  The 
judgment  will  not  be  reversed  if  there  is  any  evidence  to  support 
it.4  In  trials  of  fact  without  the  aid  of  a  jury,  the  question  of  the 
admissibility  of  evidence,  strictly  speaking,  can  seldom  be  raised, 
since  whatever  be  the  ground  of  objection,  the  evidence  objected  to 
must  of  necessity  be  read  or  heard  by  the  judge  in  order  to  deter- 
mine its  character  and  value.  In  such  cases  the  only  question  in 
effect  is  the  sufficiency  and  weight  of  the  evidence.5 

§  452.  Agreed  case. 

The  parties  may  in  any  case  submit  the  matter  in  controversy 
between  them  to  the  court  upon  an  agreed  statement  of  facts  made 
out  and  signed  by  them  or  their  counsel,  and  filed  with  the  clerk, 
upon  which  judgment  may  be  rendered  as  in  other  cases.  The  state- 
ment so  agreed  to  and  signed  and  certified  by  the  court  to  be  cor- 
rect, and  the  judgment  rendered  thereon,  constitute  the  record  of 
the  cause.6  The  pleadings  in  such  a  case  become  immaterial,  the 
judgment  of  the  court  being  given  upon  the  law  arising  upon  the 
facts;  and  upon  review  in  the  appellate  court,  such  judgment  will 
be  pronounced  as  should  have  been  pronounced  by  the  trial  court. 
As  the  facts  are  agreed  upon,  and  not  determined  upon  the  evidence, 
the  law  upon  the  facts  is  alone  to  be  decided.7 

i  Buzard  v.  Jolly,  6  S.  W.  Rep.  422. 

2Kenner  v.  Coffee.  17  S.  W.  Rep.  235;  St.  Louis,  A.  &  T.  Ry.  Co.  v.  Turner,  1  Civ. 
App.  625  (20  S.  W.  Rep.  1008);  Loomis  v.  Stewart,  24  S.  W.  Rep.  1078;  Eckford  v. 
Berry,  27  S.  W.  Rep.  840;  Fowler  v.  Chapman,  1  App.  C.  C.,  §  967;  Grace  v.  Koch, 
1  App.  C.  C.,  §  1062. 

3Callahan  v.  Patterson,  4  T.  61;  Gilliard  v.  Chesney,  13  T.  337;  Bird  v.  Pace,  26 
T.  487.  But  in  Eborn  v.  Cannon,  32  T.  231,  it  is  said  that  when  a  jury  is  waived, 
and  the  facts  as  well  as  the  law  are  submitted  to  the  court,  the  supreme  court 
will  have  less  hesitation  in  revising  its  action  than  if  there  had  been  a  finding 
of  the  facts  by  a  jury. 

*  Burris  v.  Lambeth,  1  App.  C.  C.,  §  25;  Adkinson  v.  Garrett,  1  App.  C.  C.,  §  45; 
Mitchell  v.  Dallas  City  Gas  Light  Co.,  1  App.  C.  C.,  §  133;  Shaw  v.  Parvin,  1  App. 
C.  C.,  §  367;  Faulkner  v.  Warren,  1  App.  C.  C.,  §  661;  Wilkins  v.  Weller,  1  App. 
C.  C.,  §  876. 

5Hensley  v.  Bagdad  Sash  Factory  Co.,  1  App.  C.  C.,  §  718;  McGaughey  v.  Meek, 
1  App.  C.  C.,  §  1195;  Franklin  v.  Hardie,  1  App.  C.  C.,  §  1219;  Wade  v.  Buford, 
1  App.  C.  C.,  §  1336. 

6R.  S.  1293. 

7Chappel  v.  Mclntyre,  9  T.  161;  Parker  v.  Portis,  14  T.  166;  Clay  v.  Holbert,  14 
T.  189;  Wilkinson  v.  Wilkinson,  20  T.  237.  Where  a  jury  has  been  waived  and 
the  cause  submitted  to  the  court  below,  as  well  upon  the  facts  as  the  law,  it  is 
usual  for  the  appellate  court,  when  the  judgment  is  reversed,  not  to  remand  tha 


TRIAL   BY    THE   COLIil. 

£  453.  Case  submitted  to  judge  to  be  decided  during  the  term. 

A  cause  that  has  been  submitted  for  trial  to  the  judge,  on  the  law 
and  facts,  must  be  determined  and  judgment  rendered  therein  dur- 
ing the  term  at  which  it  has  been  submitted,  and  at  least  two  days 
before  the  end  of  the  term,  if  it  has  been  tried  and  submitted  one 
day  before  that  time,  unless  it  is  continued  after  such  submission 
for  trial,  by  the  consent  of  the  parties,  placed  on  the  record ;  and 
in  such  event,  a  statement  of  facts  and  bills  of  exception  must  be 
prepared  and  filed  upon  a  request,  in  writing,  by  either  party.1 

case,  but  to  pronounce  such  judgment  as  should  have  been  rendered  in  the 
court  below,  provided  it  is  apparent  from  the  record  that  the  proper  judgment 
can  be  rendered.  But  when  it  is  apparent  from  the  record  that  the  proper 
judgment  cannot  be  rendered,  the  case  will  be  remanded  to  the  trial  court  for 
further  proceedings.  Monroe  v.  Buchanan,  27  T.  241.  As  to  when  a  case  must 
be  remanded,  see  R  S.  1027. 
1  Rule  6C.  See  JUDGMENTS,  §  623. 


CHAPTER  XXYL 


OF  THE  RIGHT  OF  TRIAL  BY  JURY. 


454.  Right  of  trial  by  jury. 

455.  Jury  trial  in  default  cases. 

456.  Trial  by  jury  in  probate  mat- 

ters. 

457.  Jury  must  be  demanded  and  fee 

paid. 

458.  Time  of  demand  for  jury;  call 

of  dockets. 


§  459.  Deposit  of  jury  fee;  affidavit  of 
inability. 

460.  Entry  of  suit  on  jury  docket. 

461.  Jury  trial  day  to  be  fixed  by 

order, 

462.  Withdrawal  of  application  for 

jury. 

463.  Challenge  to  the  array. 


§454.  Right  of  trial  by  jury. 

The  constitution  provides  that  the  right  of  trial  by  jury  shall  re- 
main inviolate,  and  that  the  legislature  shall  pass  such  laws  as  may 
be  needed  to  regulate  the  same,  and  to  maintain  its  purity  and  effi- 
ciency.1 

In  proceedings  to  remove  county  and  district  officers,  the  truth 
of  the  causes  set  forth  must  be  found  by  a  jury.3 

The  constitution  of  1866  preserved  the  right  of  trial  by  jury, 
where  the  matter  in  controversy,  whether  at  law  or  in  equity,  ex- 
ceeded twenty  dollars.3  The  right  was  preserved  by  the  constitu- 
tion of  1869  when  the  amount  in  controversy  was  valued  at  or  ex- 
ceeded ten  dollars,  except  in  cases  in  which  the  defendant  failed  to 
answer  within  the  time  prescribed  by  law,  and  the  cause  of  action 
was  liquidated  and  proved  by  an  instrument  in  writing.4 

The  constitution  of  the  republic  provided  that  the  right  of  trial 
by  jury  should  remain  inviolate,  and  remedies  were  guarantied  to 
every  man  by  due  course  of  law.8  With  this  provision  in  force,  the 
common  law  of  England  was  adopted,  so  far  as  it  was  not  incon- 
sistent with  the  constitution  or  acts  of  congress,  subject,  however, 
to  the  reserved  right  of  alteration  and  repeal  by  congress.6  After- 
wards the  constitution  of  1845  was  adopted,  and  it  was  again  de- 
clared that  the  right  of  trial  by  jury  should  remain  inviolate.7 

There  would  seem  to  be  some  doubt,  looking  alone  to  the  above 

1  Const.,  art.  I,  §  15;  R.  S.  3187. 
2R.  S.  3532. 

3  Const.  1866,  art.  V,  §  20, 

4  Const.  1£69,  art,  V,  §  16. 

5  Declaration  of  Rights,  Ninth  and  Eleventh. 

6  P.  D.  978. 

7  Const  1845,  art.  I,  §12, 


§  455.]  EIGHT    OF   TRIAL   BY   JURY.  429 

provisions,  as  to  what  specific  right  is  preserved  by  the  constitution 
of  H45,  and  subsequent  ones —  whether  it  is  the  right  of  trial  by 
jury  as  recognized  in  practice  prior  to  the  adoption  of  the  common 
law,  or  the  common-law  right  simply,  If  the  common  law  is  to  be 
the  rule  of  decision,  then,  a  party  may  demand  a  jury  under  the 
present  constitution  in  all  cases  without  reference  to  the  amount  in 
controversy  as  prescribed  by  the  constitution  of  1869,  although  it 
is  held  in  some  cases  that  the  right  recognized  by  a  constitutional 
provision  is  the  right  as  known  and  practiced  at  the  time  the  pro- 
vision is  adopted.1  It  seems,  however,  that  the  common-law  rules 
are  generally  referred  to  by  the  courts  of  this  state.2 

§  455.  Jury  trial  in  default  cases. 

"Where  a  judgment  by  default  is  rendered  against  the  defendant 
or  all  of  several  defendants,  if  the  cause  of  action  is  liquidated  and 
proved  by  an  instrument  in  writing,  the  damages  are  assessed  by 
the  court  or  under  its  •  direction,  and  judgment  final  is  rendered 
therefor,  unless  the  defendant  demand  and  be  entitled  to  a  trial  by 
jury.  If  the  cause  of  action  is  unliquidated  or  be  not  proved  by  an 
instrument  in  writing,  the  court  must  hear  evidence  as  to  the  dam- 
ages and  render  judgment  therefor,  unless  the  defendant  shall  de- 
mand and  be  entitled  to  a  trial  by  jury.  If  the  defendant  demand 
and  be  entitled  to  a  trial  by  jury,  the  judgment  by  default  must  be 
noted  and  a  writ  of  inquiry  awarded,  and  the  cause  must  be  entered 
on  the  jury  docket.3  It  will  be  noticed  that  the  defendant  is  given 
the  right  to  a  trial  by  jury  whether  the  demand  be  liquidated  or 
unliquidated,  but  that  if  he  does  not  demand  a  jury  the  damages 
are  to  be  assessed  by  the  court,  thus  wholly  denying  any  right  in 
the  plaintiff.  This  is  held  to  be  in  contravention  of  the  constitu- 

1  Cockrill  v.  Cox,  65  T.  669;  Myer  on  Vested  Rights,  §  643, 

2  Matthews  v.  State,  33  T,  117.    See  Mullally  v.  Ooggin,  25  S.  W.  Rep.  666.    A 
party  to  a  contestation  arising  upon  an  application  for  probate  of  a  will,  begun 
in  the  county  court,  but  subsequently  transferred  to  the  district  court  because 
of  the  disqualification  of  the  judge  of  the  county  court,  was  entitled,  on  request, 
in  the  district  court  to  a  trial  by  jury.     Cockrill  v.  Cox,  65  T.  669:  Gardner  v. 
Spivey,  35  T.  508, 

Though  a  trial  by  jury  be  improperly  denied,  such  denial  will  not  require  a 
reversal  of  the  judgment  if,  upon  the  facts  of  the  case,  no  other  judgment  could 
have  been  rendered.  CaldweH  County  v.  Harbert,  68  T.  821  (4  8.  W.  Rep.  607). 

A  party  filing  a  plea  in  abatement,  setting  up  an  issue  of  fact  as  to  his  place 
of  residence,  is  entitled  to  a  jury  trial.  Howeth  v.  Clark,  4  App,  C.  C.,  §  815. 

Where  a  party  demands  a  jury  according  to  law  and  pays  the  fee,  his  absence 
when  the  case  is  called  for  trial  cannot  be  construed  as  a  waiver  of  a  jury  trial 
The  trial  may  proceed  without  delay,  but  it  must  be  by  jury,  according  to  the 
demand  of  the  party.  Lacroix  v.  Evans,  1  App.  C,  C.,  $  749. 

Where  neither  party  demands  a  jury,  it  is  competent  for  the  court  to  try  and 
determine  a  suit  for  damages,  Burnett  v.  Gunter,  1  App.  C.  C.,  §  664, 

3R.  S.  1284-1286. 


430  EIGHT   OP   TRIAL   BY   JUKY.  [§§  456,  457. 

tional  guaranty.1  Under  article  1508,  Paschal's  Digest,  if  the  cause 
of  action  was  liquidated  and  proved  by  any  instrument  of  writing, 
the  clerk,  unless  a  jury  was  asked  for  by  either  party,  assessed  the 
damages,  but  if  the  cause  of  action  was  unliquidated,  a  jury  was  re- 
quired. The  early  cases  are  therefore  to  be  read  with  reference  to 
this  law. 

When  judgment  by  default  is  rendered,  the  defendant  is  not  en- 
titled to  have  the  damages  claimed  in  the  petition  assessed  by  a 
jury,  if  he  has  failed  in  proper  time  and  manner  to  demand  a  jury 
and  to  deposit  the  proper  fee.2 

In  a  suit  upon  a  promissory  note  upon  which  unliquidated  cred- 
its are  indorsed,  it  is  error  to  render  judgment  by  default  without 
a  jury.3  Where  there  is  no  issue  joined,  and  the  facts  are  admitted 
by  the  defendant,  it  is  not  error  to  render  judgment  without,  a  jury.4 

§  456.  Trial  by  jury  in  probate  matters. 

There  shall  be  no  trial  by  jury  in  probate  matters,  except  when 
expressly  provided  by  law.8  It  is  held  that  this  provision  of  law  is 
not  objectionable  in  its  application  to  the  proceeding  in  the  first  in- 
stance in  the  county  court,  so  long  as  the  right  of  appeal  to  the  dis- 
trict court  and  a  jury  trial  on  appeal  are  secured ;  and  where  a 
contest  originating  in  the  probate  of  a  will  was  transferred  to  the 
district  court  on  account  of  the  disqualification  of  "the  judge  of  the 
county  court,  a  party  was  entitled  to  a  jury  if  demanded.6 

§  457.  Jury  must  be  demanded  and  fee  paid. 

In  the  trial  of  all  causes  in  the  district  courts,  the  plaintiff  or  de- 
fendant, upon  application  made  in  open  court,  has  the  right  of  trial 
by  jury;  but  no  jury  is  impaneled  in  any  civil  case  unless  demanded 
by  a  party  to  the  case,  and  a  jury  fee  be  paid  by  the  party  demand- 
ing the  jury,  for  such  sum  and  with  such  exceptions  as  may  be  pre- 
scribed by  the  legislature.7  No  jury  will  be  impaneled  to  try  a  civil 
case  in  the  county  court  unless  demanded  by  one  of  the  parties,  who 
must  pay  such  jury  fee  therefor,  in  advance,  as  may  be  prescribed  by 
law,  unless  he  makes  affidavit  that  he  is  unable  to  pay  the  same.8  No 
jury  trial  can  be  had  in  any  civil  suit  unless  an  application  therefor 
be  made  in  open  court  and  a  jury  fee  be  deposited,  or  an  affidavit  be 
made  of  inability  to  make  such  deposit  as  provided  by  law.9 

I  Cent.  &  Mont  Ry.  Co.  v.  Morris,  68  T.  49  (3  S.  W.  Rep.  457). 
2Bumpass  v.  Morrison,  70  T.  756  (8  S.  W.  Rep.  596);  Johnson  v.  Bowling,  1  App. 
G  G,  §  1090. 

» Mills  v.  Stuhl,37T.  312. 

<  Hammond  v.  Mays,  45  T.  486. 

6  R.  S.  1855. 

«  Cockrill  v.  Cox,  65  T.  669.    Cases  are  not  now  transferred.    R.  S.  1131. 

7  Const.,  art.  V,  §  10. 

8  Const.,  art,  V,  §  17. 
(JR.  S.  3188. 


RIGHT   OF   TRIAL    BY   JURY.  431 

A  party  N  entitled  to  a  jury  on  the  trial  of  a  case  after  an  appeal 
and  reversal,  if  properly  demanded,  although  he  waived  a  jury  on 
the  first  trial.1  The  rule  is  that  a  jury  may  be  demanded  on  the 
day  the  case  is  set  for  trial,  although  a  jury  may  have  been  waived 
at  a  preceding  term.-' 

?:'  458.  Time  of  demand  for  jury;  call  of  dockets. 

Any  party  to  a  civil  suit  in  the  district  or  county  court  desiring 
to  have  the  same  tried  by  jury  must  make  application  therefor  in 
open  court  on  the  first  day  of  the  term  of  the  court  at  which  the 
suit  is  to  be  tried,  unless  the  same  be  an  appearance  case,  in  which 
event  the  application  must  be  made  on  default  day. 

On  the  first  day  of  each  term  of  the  court,  the  court  calls  over 
the  docket,  except  appearance  cases,  and  notes  thereon  in  each  case 
whether  or  not  a  jury  trial  is  applied  for  therein,  and  by  which 
party.  On  the  call  of  the  appearance  docket  at  each  term  of  the 
court,  the  court  in  like  manner  notes  in  each  appearance  case 
whether  or  not  a  jury  trial  is  applied  for,  and  by  whom.' 

The  second  day  of  each  term  of  the  district  or  county  court  is 
termed  appearance  day.  It  is  the  duty  of  the  court  on  appearance 
day  of  each  term,  or  as  soon  thereafter  as  may  be  practicable,  to 
call  in  their  order  all  the  cases  on  the  docket  which  are  returnable 
to  such  term;  judgments  by  default  may  be  noted  on  the  call  of 
the  docket.4 

It  seems  that  the  provision  of  the  statute  as  to  the  time  of  mak- 
ing application  for  a  jury  is  not  mandatory;  or  rather  that  the 
courts  will  not  so  construe  the  law  as  unreasonably  to  interfere 
with  the  constitutional  right  of  trial  by  jury.  If  a  party  fails  to 
demand  a  jury  at  the  time  specified  by  statute,  the  result  of  the 
cases  seems  to  be  that  he  may  still  have  a  trial  by  jury,  if  the  de- 

» Dunlap  v.  Brooks,  3  App.  C.  C.,  §  358. 

2  Brown  v.  Chenoworth,  51  T.  469;  Dean  v.  Sweeney,  51  T.  242.  Where  parties 
set  the  case  for  trial  for  a  day  when,  by  the  orders  of  the  court,  no  jury  will  be 
in  attendance,  the  absence  of  a  jury  will  not  be  a  reason  for  the  continuance  of 
the  case.  Litigants  are  chargeable  with  knowledge  of  the  standing  orders  of  the 
court  Cole  v.  Terrell,  71  T.  549  (9  S.  W.  Rep.  668). 

Where  the  record  on  appeal  does  not  show  any  action  taken  on  demand  for  a 
jury,  but  on  the  other  hand  does  show  a  waiver  of  a  jury,  and  that  no  jury 
fee  was  paid  or  that  the  case  was  put  on  the  jury  docket,  the  action  of  the  trial 
court  in  excusing  some  of  the  regular  jury  cannot  be  reviewed  on  appeal  Doll 
v.  Mundine,  7  Civ.  App.  96  (36  SL  W.  Rep.  87).  Where  judgment  by  default  is 
rendered  without  a  jury,  the  defendant  on  appeal  cannot  urge  that  he  was  de- 
nied a  jury  trial  when  the  only  knowledge  of  defendant's  desire  for  a  jury  on 
the  part  of  the  trial  judge  arises  from  a  record  recital  of  a  jury  had  by  the  par- 
ties on  a  former  trial  of  the  cause  before  another  judge.  Ellis  v.  Bonner,  7  Civ. 
App.  539  (27  S.  W.  Rep.  687). 

It  is  the  duty  of  the  court  to  hear  the  evidence  and  determine  the  facts  where 
n  'ither  party  demands  a  jury.  Brooks  v.  Pegg,  8  S.  W.  Rep.  595. 

»  R.  a  3189,  3192,  3193. 

*  R.  S.  1280-1282. 


432  EIGHT    OF   TRIAL   BY   JURY.  [§  458. 

mand  be  made  at  a  time  when  a  jury  is  in  attendance,  provided  his 
delay  in  the  matter  has  not  been  detrimental  to  the  interests  of  his 
adversary.  The  fact  that  a  jury  has  been  waived  or  demanded  at 
one  term  will  not  prevent  a  party's  waiving  or  demanding  a  jury 
at  a  subsequent  term.  The  cases,  however,  are  not  uniform.  In  a 
late  case1  the  following  language  is  found:  "It  is  not  held  that  a 
party  is  not  at  fault  who  has  failed  to  make  his  demand  on  the  day 
prescribed  by  the  statute;  but  that  in  view  of  the  importance  of 
the  right  to  a  jury  trial,  the  privilege  will  not  be  denied  him  al- 
though he  has  been  dilatory,  in  case  the  opposite  party  is  not 
deprived  of  any  right."  Again:  "In  deciding  questions  of  this 
character  it  has  been  the  leading  and  proper  purpose  of  our  courts 
to  give  such  construction  to  the  articles  of  the  code  regulating  jury 
trials  in  civil  causes  as  would  secure  to  parties  not  unreasonably 
delinquent  in  complying  with  the  law  that  character  of  trial. 
A  failure  to  demand  a  jury  and  pay  the  fee  on  the  day  required  by 
the  statute,  it  has  been  held,  was  not  of  itself  sufficient  to  defeat 
the  right.  But  it  will  be  generally  found  in  the  cases  where  this 
question  was  decided,  that  a  jury  was  in  attendance  upon  the  court, 
and  that  no  injury  resulting  from  delay  would  probably  be  done 
the  other  party."2 

The  failure  of  a  party  to  demand  a  jury  when  the  cause  is  called 
oti  appearance  day  will  not  preclude  him  from  the  right  to  have  a 
jury  if  demanded  in  time  at  a  subsequent  term,  on  compliance  with 
the  terms  of  the  statute.3 

1  Petri  v.  Lincoln  Nat.  Bank,  84  T.  153  (19  S.  W.  Rep.  379). 

2  Petri  v.  First  Nat.  Bank,  83  T.  424  (18  S.  W.  Rep.  752). 

3  Noel  v.  Denman,  76  T.  306  (13  S.  W.  Rep.  318);  Cushman  v.  Flanagan,  50  T. 
389;  Dean  v.  Sweeney,  51  T.  242;  Brown  v.  Chenoworth,  51  T.  469.    It  has  been 
held  that,  if  a  party  to  a  civil  suit  fails  to  demand  a  jury  on  the  first  day  during 
the  term  on  which  the  docket  is  called  for  the  purpose  of  granting  applications 
for  juries,  he  cannot,  as  a  matter  of  right,  afterwards  demand  that  his  case 
shall  be  tried  by  a  jury  (McFaddin  v.  Preston,  54  T.  403);  also  that  an  applica- 
tion for  a  jury  in  an  appearance  case,  and  a  deposit  of  the  fee,  made  when  the 
case  is  called  for  trial,  may  be  refused  (Fields  v.  Crescent  Ins.  Co.,  3  App.  C.  C., 
§  125);  also  that  Revised  Statutes,  article  3189,  provides  for  application  for  a 
jury  to  be  made  on  the  first  day  of  a  term,  unless  in  appearance  cases,  when  it 
is  to  be  made  on  "default  day,"  and  that  under  that  article,  in  connection  with 
Revised  Statutes,  articles  1280,  1281  and  1282,  "default  day  "and  "appearance 
day  "  have  the  same  meaning,  and  an  application  on  the  fourth  day  of  the  term 
is  too  late.    Cruger  v.  McCracken,  26  S.  W.  Rep.  282. 

There  was  no  error  in  the  refusal  of  the  court  to  grant  the  defendant's  de- 
mand for  a  jury  after  the  jury  docket  had  been  disposed  of  for  the  term  and  the 
regular  panel  discharged.  Denton  L.  Co.  v.  First  Nat.  Bank,  18  S.  W.  Rep.  962. 
It  is  a  sufficient  excuse  for  not  demanding  a  jury  on  the  first  day  of  the  term 
that  there  was  at  that  time  no  judge  competent  to  receive  the  demand  and 
enter  the  order.  Hays  v.  Hays,  66  T.  606  (1  S.  W.  Rep.  895). 

It  was  error  for  the  court,  on  appearance  day,  and  after  defendants'  applica- 
tion for  a  continuance  had  been  overruled,  to  refuse  their  demand  for  a  jury  on 
the  ground  that  they  had  waived  their  right  thereto  by  such  application  for 


'!>.]  IiI<,HT   OF    TRIAL    BY    JTKY.  433 

It  is  the  duty  of  the  court  to  give  a  liberal  construction  to  the 
statute,  so  as  to  permit  parties  to  exercise  the  right  of  trial  by  jury, 
where  it  can  be  done  without  delay  or  prejudice  to  the  opposite 
party;  but  it  is  held  that  the  courts  have  gone  as  far  in  this  direc- 
tion as  seems  reasonable  and  just.  After  the  jury  service  for  the 
term  is  ended  and  the  jury  has  been  discharged,  it  is  proper  to  re- 
fuse a  demand  for  a  jury.1 

£  459.  Deposit  of  jury  fee;  affidavit  of  inability. 

The  party  applying  for  a  jury  trial  in  the  district  or  county  court 
must  on  the  same  day  deposit  with  the  clerk,  to  the  use  of  the 
county,  a  jury  fee  of  $5,  if  in  the  district  court,  and  of  $3,  if  in  the 
county  court.  The  deposit  is  not  required  when  the  party,  within 
the  time  limited  for  making  such  deposit,  files  with  the  clerk  an 
affidavit  in  writing  signed  by  him,  to  the  effect  that  he  is  unable  to 
make  such  deposit,  and  that  he  cannot,  by  the  pledge  of  property 
or  otherwise,  obtain  the  money  necessary  for  that  purpose.2 

A  discretion  may  be  exercised  by  the  trial  judge  in  allowing 
the  deposit  of  the  jury  fee  by  the  party  who  in  time  has  applied  for 
a  jury,  but  who  has  failed  to  make  the  jury  fee  deposit,  provided 
the  same  be  made  before  trial,  and  when  the  exercise  of  such  dis- 
cretion works  no  injury  to  the  complaining  party.  The  statute  is 
not  mandatory ; 3  whenever  the  failure  to  make  the  required  pay- 
ment is  delayed  for  such  time  as  to  materially  affect  the  rights  of 

continuance  and  by  failing  to  demand  a  jury  at  the  call  of  the  appearance 
docket  for  orders  a  few  hours  earlier;  it  not  appearing  that  any  jury  was  in  at- 
tendance at  such  call  of  the  docket,  and  had  been  discharged  because  of  failure 
to  then  demand  a  jury.  Cook  v.  Cook,  5  Civ.  App.  30  (23  S.  W.  Rep.  927). 

Suit  on  protested  draft  filed  May,  1890.  Defendants  filed  original  answer 
June,  1890.  and  amended  answer  October,  1890.  On  March  2,  1891,  defendants 
applied  for  a  jury,  tendering  the  jury  fee.  This  was  after  the  jury  docket  had 
been  disposed  of,  and  four  days  before  the  cause  was  tried,  and  it  was  held  that 
tin-  trial  court  properly  refused  to  place  the  case  upon  the  jury  docket.  Petri 
T.  Bank,  83  T.  424  (18  S.  W.  Rep.  752). 

Suit  was  brought  May  9,  1890.  Answer  was  filed  September  27,  1890.  Jury 
•was  demanded  by  defendants  April  24,  1891.  It  had  been  ordered  by  the  court 
that  no  jury  cases  would  be  tried  during  the  term.  The  trial  docket  had  been 
apportioned,  and  on  the  day  of  the  apportionment  for  this  case  the  defendants 
made  application  for  a  jury.  In  such  condition,  as  the  demand  if  acceded  to 
•would  have  continued  the  case,  it  cannot  be  held  that  the  plaintiff  would  not 
have  been  prejudiced  by  aUowing  a  jury;  its  refusal,  therefore,  was  not  error 
nor  ground  for  reversal  of  judgment  rendered  at  the  term.  Petri  v.  Bank,  84 
•:  (19  S.  W.  Rep.  379). 

i  Barton  v.  American  Nat  Bank,  8  Civ.  App.  223  (29  S.  W.  Rep.  200). 

2R.  S.  3194,3195. 

3  Hardin  v.  Blackshear,  60  T.  132;  Gallagher  v.  Goldfrank,  63  T.  473;  Allen  v. 
Plummer,  71  T.  546  (9  S.  W.  Rep.  672).  Where  a  defendant  had  made  a  demand 
for  a  jury  in  proper  time,  but  failed  to  deposit  the  fee  until  after  the  jury  docket 
was  disposed  of,  a  jury  was  properly  refused.  Wood  v.  Kieschbaum,  31  S.  W. 
.Rep.  326. 
28 


434:  EIGHT   OF   TRIAL   BY   JURY.  [§§  460,  461., 

the  parties  or  to  interfere  with  the  orderly  conduct  of  the  business 
of  the  court,  a  jury  trial  ought  to  be  refused.1 

If  the  party  demanding  a  jury  be  unable  to  pay  the  fee,  he  must 
accompany  the  application  with  an  affidavit  to  that  effect.2  On 
objection  that  a  jury  was  improperly  allowed  because  the  fee  was 
not  paid,  there  being  nothing  in  the  record  to  the  contrary,  it  will 
be  presumed  that  the  affidavit  of  inability  was  made.3 

§  460.  Entry  of  suit  on  jury  docket. 

"When  a  jury  has  been  properly  demanded,  pursuant  to  the  fore- 
going provisions,  the  court  will  order  the  clerk  to  enter  the  suit  on 
the  jury  docket.  It  is  the  duty  of  the  clerks  of  the  district  and 
county  courts  each  to  keep  a  docket,  to  be  styled  "the  jury  docket," 
in  which  shall  be  entered  in  their  order  the  cases  in  which  jury 
trials  have  been  ordered  by  the  court.4  Default  cases  in  which  a. 
jury  trial  is  to  be  had  must  be  entered  upon  the  jury  docket.5 

§  461.  Jury  trial  day  to  be  fixed  by  order. 

The  court,  by  an  order  entered  on  the  minutes,  may  designate 
any  day  during  the  term  for  the  taking  up  of  the  jury  docket,  and 

1  Cabell  v.  Hamilton  Brown  Shoe  Co.,  81  T.  104  (16  S.  W.  Rep.  811).    A  jury 
was  demanded  on  the  first  day  of  the  term,  and  the  jury  fee  paid  on  the  second 
day,  and  it  was  held  that  as  no  injury  would  have  resulted  to  the  opposing 
party,  and  neither  the  business  of  the  court  nor  the  trial  of  the  cause  would 
have  been  delayed,  the  jury  fee  should  have  been  accepted  and  the  jury  allowed. 
Gallagher  v.  Goldfrank,  63  T.  473. 

Defendants  demanded  a  jury  and  had  the  cause  placed  on  the  jury  docket. 
No  jury  fee  was  deposited  by  or  on  the  first  day  of  the  term,  and  on  motion  of 
plaintiffs  the  cause  was  stricken  from  the  jury  docket,  although  the  jury  fee 
was  deposited  before  the  motion  was  filed.  The  cause  was  called  in  its  regular 
order,  and  plaintiffs  objected  to  its  trial  on  the  ground  that  all  the  jury  cases 
had  not  been  disposed  of.  It  was  held:  (1)  That  the  case  should  not  have  been 
stricken  from  the  jury  docket  (following  Gallagher  v.  Goldfrank,  63  T.  473). 
(2)  Plaintiffs  could  not  be  heard  to  complain  that  they  were  not  permitted  to 
reap  a  further  advantage  than  the  erroneous  ruling  of  the  court  had  already 
given  them.  Allyn  v.  Willis,  65  T.  65. 

A  party  demanded  a  jury  on  the  first  day  of  the  term,  paid  the  fee  on  the  sec- 
ond day,  and  the  case  was  called  on  the  third  day;  the  jury  cases  on  the  civil 
docket  were  set  for  the  second  week  of  the  term,  and  it  was  held  error  to  disre- 
gard the  demand  for  a  jury  and  proceed  to  try  the  cause.  Allen  v.  Plummer, 
71  T.  546  (9  S.  W.  Rep.  672).  Answer  was  filed  March  9,  1888,  and  a  jury  de- 
manded, but  the  jury  fee  was  not  paid  until  April  12,  which  was  after  the  time 
allotted  for  the  trial  of  jury  cases  had  passed,  and  when  the  cause  was  called  on 
the  non-jury  docket  the  defendant  asked  that  it  be  placed  on  the  jury  docket. 
This  the  court  refused.  As  early  as  March  27  the  counsel  for  defendant  had 
been  informed  by  the  court  that  no  cause  would  be  placed  on  the  jury  docket 
before  payment  of  the  jury  fee.  The  refusal  of  a  jury  was  held  no  ground  for 
reversal  Cabell  v.  Hamilton  Brown  Shoe  Co.,  81  T.  104  (16  S.  W.  Rep.  811). 

2  Fields  v.  Crescent  Ins.  Co.,  3  App.  C.  C.,  §  125.    See  Berry  v.  T.  &  N.  O.  Ry, 
Co.,  60  T.  654. 

8  Keeper  v.  Irons,  3  App.  C.  C.,  §  180. 

4R.S.  3197,  319& 

6R.S.1286. 


£§  462,  463.]  EIGHT  OF  TRIAL  BY  JURY.  435 

the  trial  of  causes  thereon ;  and  such  order  may  be  revoked  or 
changed  at  discretion.1  By  another  provision  of  the  statute  the 
order  so  made  shall  stand  for  all  subsequent  terms,  until  changed 
by  a  like  order;  and  the  change,  when  made,  shall  not  take  effect 
until  the  succeeding  term.  Jurors  are  to  be  summoned  to  appear 
on  the  day  fixed  for  the  trial  of  jury  causes.2 

§  462.  Withdrawal  of  application  for  jury. 

When  one  party  has  applied  for  a  jury  trial,  as  above  provided, 
he  will  not  be  permitted  to  withdraw  such  application  without  the 
consent  of  the  parties  adversely  interested.  When  a  party  who  has 
applied  for  a  jury  trial  has  been  permitted  to  withdraw  such  appli- 
cation, the  court  may,  in  its  discretion,  by  an  order  permit  him  to 
withdraw  also  his  jury  fee  deposit.1 

A  demand  of  a  jury  by  one  party  inures  to  the  benefit  of  his  ad- 
versary, and  the  latter  is  entitled  to  have  the  case  tried  by  a  jury; 
and  the  withdrawal  of  the  case  from  the  jury  docket  without  his 
consent  is  error.4 

§  463.  Challenge  to  the  array. 

Any  party  to  a  suit  which  is  to  be  tried  by  a  jury  may,  before  the 
jury  is  drawn,  challenge  the  array  of  jurors  upon  making  it  to  appear 
that  the  officer  summoning  the  jury  has  acted  corruptly,  and  has  wil- 
fully summoned  jurors  known  to  be  prejudiced  against  the  party  chal- 
lenging, or  biased  in  favor  of  the  adverse  party.  No  challenge  to  the 
array  will  be  entertained  where  the  jurors  have  been  selected  by  jury 
commissioners  under  the  provisions  of  the  statute.  All  challenges  to 
the  array  must  be  in  writing,  setting  forth  distinctly  the  grounds  of 
such  challenge,  and  must  be  supported  by  the  affidavit  of  the  party, 
or  some  other  credible  person.  When  a  challenge  to  the  array  is  made, 
the  court  must  hear  evidence  and  decide  without  delay  whether  the 
challenge  shall  be  sustained  or  not.  If  the  challenge  be  sustained, 
the  array  of  jurors  summoned  shall  be  discharged,  and  the  court 
shall  order  other  jurors  to  be  summoned  in  their  stead,  and  shall 
direct  that  the  officer  who  summoned  the  persons  so  discharged,  and 
on  account  of  whose  misconduct  the  challenge  has  been  sustained, 
shall  not  summon  any  other  jurors  in  the  case.5 

Only  the  statutory  causes  can  be  urged  to  support  a  challenge 
to  the  array.6 

An  objection  that  a  juror  was  not  summoned  by  a  sworn  officer 
comes  too  late  after  verdict.7 

1  R.  S.  3199. 

2  R  a  1289. 

»  R.  S.  3200,  3201. 

4  Jones  v.  Hamby,  29  a  W.  Rep.  75. 

«  R  S.  3202-3206. 

«  Roundtree  v.  Gilroy,  57  T.  176 ;  G.f  H .&  a  A.  Rj.  Co.  v.  Jessee,  2  App.  C.  C.,  §  406. 

7  Newman  v.  Dodson,  61  T.  91. 


CHAPTER  XXVII. 


DRAWING  AND  IMPANELING  THE  JURY. 


464.  Drawing  a  jury. 

465.  Challenge  for  cause;  procedure. 

466.  Peremptory    challenges,    when 

made;  procedure;  calling  the 


467.  Peremptory  challenges  defined; 

number  of;  when  made. 

468.  Grounds  of  challenge. 


§  469.  Challenges  to  be  decided 
promptly. 

470.  Swearing  the  jury. 

471.  Number  required  to  compose  a 

jury. 

472.  Number   required   to  render  a 

verdict. 


§  464.  Drawing  a  jury. 

The  clerks  of  the  district  and  county  courts  are  required  to  pro- 
vide and  keep  a  box  with  a  sliding  lid,  to  be  used  in  drawing  a  jury. 
"When  the  parties  to  a  civil  cause  which  is  to  be  tried  by  a  jury 
announce  themselves  ready  for  trial,  and  no  challenge  to  the  array 
is  made,  the  clerk  writes  the  names  of  all  the  regular  panel  for  the 
week  on  separate  slips  of  paper,  as  near  the  same  size  and  appear- 
ance as  may  be,  and  places  such  slips  in  the  box  and  mixes  them 
well.  He  then  draws  from  the  box,  in  the  presence  of  the  court, 
the  names,  one  by  one,  of  twenty-four  jurors,  if  in  the  district  court, 
or  so  many  as  there  may  be,  if  there  be  a  less  number  in  the  box ; 
and  the  names  of  twelve  jurors,  if  in  the  county  court,  or  so  many 
as  there  may  be,  if  there  be  a  less  number  in  the  box,  and  writes 
the  names  as  they  are  drawn  upon  several  slips  of  paper  and  delivers 
one  slip  to  each  of  the  parties  to  the  suit  or  their  attorneys.  When 
there  are  not  so  many  names  drawn  from  the  box  as  twelve,  if  in 
the  district  court,  or  six,  if  in  the  county  court,  the  court  will  direct 
the  sheriff  to  summon  such  number  of  qualified  persons  as  it  may 
deem  necessary  to  complete  the  panel,  and  the  names  of  the  persons 
so  summoned  must  be  placed  in  the  box  and  drawn  and  entered 
upon  slips  as  provided  above.1 

The  court  should  require  the  clerk  to  draw  the  jury  after  the 
parties  have  announced  themselves  ready  for  trial ;  and  a  party  is 
not  required  to  state  his  objections  to  a  list  made  up  before  the  an- 
nouncement of  ready.  It  is  not  held  to  be  reversible  error,  how- 
ever, to  overrule  objections  to  a  list  so  made  up.2 


i  R.  S.  3216-3219. 

*G.,  C.  and  S.  F.  Ry.  Co.  v.  Keith,  74  T.  287  (11  S.  W.  Rep.  1117). 


§§  465,  466.]          DRAWING    AND    IMPANELING    THE   JUBT.  437 

i;  465.  Challenge  for  causo;  procedure. 

When  as  many  as  twelve  or  more  jurors,  if  in  the  district  court, 
or  six  or  more,  if  in  the  county  court,  are  drawn,  and  the  slips  con- 
taining their  names  are  delivered  to  the  parties,  if  either  party  de- 
sires to  challenge  any  juror  for  cause,  such  challenge  must  then  be 
made.  If  the  number  of  jurors  be  reduced  by  challenge  for  cause 
to  less  than  twelve  in  the  district  court,  or  six  in  the  county  court, 
the  court  must  order  other  jurors  to  be  drawn  or  summoned,  as  the 
case  may  be,  and  entered  upon  the  slips  in  place  of  those  who  have 
been  set  aside  for  cause.1 

It  is  contemplated  by  the  statutes  that  the  challenge  of  jurors  for 
cause  should  be  made  after  their  names  are  drawn  by  the  clerk  and 
the  jury  lists  delivered  to  the  parties,  but  this  may  be  waived  by 
counsel.  If,  before  the  delivery  of  the  list,  an  exception  be  taken 
to  the  questions  propounded  to  test  the  qualification  of  a  juror,  it 
cannot  be  objected  on  appeal  that  the  examination  was  conducted 
at  an  improper  time,  when  no  such  objection  was  urged  before. 
The  appellate  court  will  not  consider,  on  exceptions,  whether  a 
juror  whom  the  appellant  was  compelled  to  challenge  peremptorily 
was  disqualified  under  the  statute  and  should  have  been  excused 
from  sitting  for  cause,  when  the  record  fails  to  reveal  that  the  ap- 
pellant had  exhausted  his  challenges  before  the  jury  was  complete.2 

§  466.  Peremptory  challenges,  when  made;  procedure;  calling  the 
jury. 

When  a  juror  has  been  challenged  and  set  aside  for  cause  his 
name  must  be  erased  from  the  slips  furnished  the  parties,  and  if 
there  be  remaining  on  such  slips  not  subject  to  challenge  for  cause, 
twelve  names,  if  in  the  district  court,  or  six  names,  if  in  the  county 
court,  the  parties  shall  proceed  to  make  their  peremptory  challenges, 
if  they  desire  to  make  any.  When  the  parties  have  made  their 
peremptory  challenges,  or  when  they  decline  to  make  any,  they 
shall  deliver  their  slips  to  the  clerk,  and  the  clerk  shall,  if  the  case 
be  in  the  district  court,  call  off  the  first  twelve  names  on  the  slips 
that  have  not  been  erased,  and  if  in  the  county  court,  the  first  six 
names,  and  these  shall  constitute  the  jury  to  try  the  case.  When 
by  peremptory  challenges  the  jury  is  left  incomplete,  the  court  will 
direct  such  number  of  other  jurors  to  be  drawn  or  summoned,  as 
the  case  may  be,  as  he  may  consider  sufficient  to  complete  the  jury, 
and  the  same  proceedings  must  be  had  in  selecting  and  impaneling 

1  R.  S.  S220.  8221.  The  names  of  the  jurors  must  be  drawn  after  the  parties 
announce  ready  for  trial,  and  on  the  delivery  of  a  list  to  each  of  the  parties  the 
challenges  for  cause  are  made.  G.,  C.  &  S.  F.  Ry.  Co.  v.  Keith,  74  T.  287  (11 
S.  W.  Rep.  1117). 

*H.  &  T.  C.  Ry.  Co.  v.  Terrell,  69  T.  650  (7  S.  W.  Re  \  670):  Smith  v.  Bates,  27 
S.  W.  Rep.  1044 


438  DRAWING  AND  IMPANELING  THE  JUEY.         [§  467. 

such  jurors  as  are  had  in  the  first  instance.1  It  is  held  that  the  ob- 
ject of  the  statute  was,  as  far  as  practicable,  to  secure  the  formation 
of  a  jury  from  the  names  selected  by  the  jury  commissioners,  and 
to  prevent  delay  in  the  formation  of  a  jury.  If,  when  a  jury  is 
to  be  impaneled,  as  many  as  twelve  names  remain  of  the  panel  for 
the  week,  no  talesmen  should  be  summoned  until  such  challenges 
for  cause  as  are  desired  have  been  made.  If,  after  challenges  for 
cause,  as  many  as  twelve  men  remain  in  the  jury  box,  both  parties 
must  then  proceed  to  make  their  peremptory  challenges.  When- 
ever the  number  is  less  than  twelve,  either  when  first  drawn  or 
after  challenges  for  cause,  or  after  peremptory  challenges,  then,  and 
not  before,  the  court  may  order  others  to  b3  summoned  by  the 
sheriff.2 

A  party  not  having  exhausted  his  challenges  when  talesmen  are 
summoned,  has  the  right  to  challenge  upon  being  presented  with 
the  list  of  such  talesmen.  It  was  error  to  refuse  a  party,  having 
exercised  his  right  to  challenge  only  to  five  jurors,  the  right  to 
challenge  another  when  talesmen  were  called  to  complete  the  jury.3 

§  467.  Peremptory  challenges  denned;  number  of;  when  made. 

A  peremptory  challenge  is  made  to  a  juror  without  assigning  any 
reason  therefor.  Each  party  to  a  civil  suit  in  the  district  court  is 
entitled  to  six  peremptory  challenges.  Each  party  to  a  civil  suit 
in  the  county  court  is  entitled  to  three  peremptory  challenges.4 
Peremptory  challenges  may  be  made  orally,  after  challenges  for 
cause  are  made.5  Where  the  interests  of  two  defendants  are  so 
nearly  identical  as  to  make  them  but  one  party  to  a  suit,  in  the 
sense  in  which  that  term  is  used  in  the  jury  law,  but  six  jurors  can 
be  challenged  by  the  defendants.6  When  the  issues  to  be  tried  be- 
tween the  plaintiffs  and  the  defendants  are  the  same,  then  there  are 
but  two  parties  to  the  action,  each  entitled  to  six  challenges.  This 
general  rule  is  not  affected  by  the  fact  that  the  extent  of  liability 

1 R.  S.  3222-3224. 

2  G.,  C.  &  S.  F.  Ry.  Co.  v.  Greenlee,  70  T.  553  (8  S.  W.  Rep.  129).    Where  a  party 
is  entitled  to  a  jury  selected  by  commissioners,  it  is  error  to  compel  him  to  try 
the  case  before  a  jury  selected  from  a  venire  summoned  by  order  of  court. 
Smith  v.  Bates,  27  S.  W.  Rep.  1044. 

3  Mitchell  v.  Mitchell,  80  T.  101  (15  S.  W.  Rep.  705).    The  defendant  is  not  en- 
titled to  have  the  list  of  the  jurors  remaining  after  the  striking  by  plaintiff 
called  before  he  passes  upon  the  jury.    Texas  Mut.  L.  Ins.  Co.  v.  Brown,  2  U.  C. 
160. 

Where  on  appeal  it  is  not  shown  that  an  objectionable  juror  remained  upon 
the  jury,  the  question  whether  appellant  was  denied  his  legal  number  of  per- 
emptory challenges  will  not  be  considered.  Snow  v.  Starr,  75  T.  411  (12  S.  W. 
Rep.  673). 

4R  S.  3211-3213. 

*R.S.  3214. 

•Jones  v.  Ford,  60  T.  127. 


S.]  DRAWING    AND    IMPANELING   THE   JCRY.  439 

•of  one  of  several  defendants  is  different  from  that  of  the  others 
where  the  liability  of  each  depends  upon  the  same  facts.1 

When  there  is  more  than  one  defendant,  and  the  liability  of  each 
•depends  upon  the  same  fact,  they  will  be  considered  as  only  one 
] tarty.  But  where  there  is  no  identity  of  interest  between  them, 
and  the  issues  are  not  the  same  between  them  and  plaintiff,  or  if  the 
defendants  claim  adversely  to  each  other,  and  their  interests  would 
:l'ected  by  the  finding  of  the  jury,  then  each  defendant  is  en- 
titled to  six  peremptory  challenges.3  A  plaintiff  and  an  intervener 
who  are  making  a  common  fight  against  a  garnishee  constitute  one 
party,  and  are  entitled  to  six  peremptory  challenges  only.  The 
proper  practice  in  such  a  case  is  to  apportion  the  challenges,  espe- 
cially if  the  parties  disagree  as  to  the  jurors  to  be  challenged.  It 
was  held  not  error  to  refuse  a  separate  list  to  the  intervener.3 

The  clerk  draws  the  jury  and  delivers  the  lists  to  the  parties,  and 
challenges  for  cause  are  then  heard  and  decided.  Peremptory  chal- 
lenges are  then  made,  by  simply  striking  the  name  of  any  objec- 
tionable juror  from  the  list.  A  challenge  for  cause  must  be  made 
known  to  the  court;  a  peremptory  challenge  is  a  privilege  the  cause 
of  which  the  parties  may  wish  should  not  be  known,  and  the  court 
•cannot  compel  them  to  make  it  known  at  any  stage  of  the  proceed- 
ing or  for  any  purpose.4 

§468.  Grounds  of  challenge. 

A  challenge  for  cause  is  an  objection  made  to  a  particular  juror, 
allt'iring  some  fact  which,  under  the  provisions  of  the  statute,  dis- 
qualifies him  to  serve  as  a  juror  in  any  case,  or  in  the  particular 
<:ase,  or  which,  in  the  opinion  of  the  court,  renders  him  an  unfit 
person  to  sit  on  the  jury.  Upon  a  challenge  for  cause  the  examina- 
tion is  not  confined  to  the  answers  of  the  juror,  but  other  evidence 
may  be  heard  in  support  of  or  against  the  challenge.  In  examining 

1  Hargrave  v.  Vaughn,  82  T.  347  (18  S.  W.  Rep.  695).    Three  defendants  were 
sued  for  false,  imprisonment;  one  pleaded  in  abatement,  denying  any  participa- 
tion in  the  acts  of  the  others  within  the  county  where  the  suit  was  brought. 
The  defendants  insisted  on  the  right  to  challenge  six  jurors  by  the  defendant 
pleading  in  abatement,  and  six  by  the  others,  and  it  was  held  that  the  court  was 
not  in  error  in  limiting  the  challenges  by  all  the  defendants  to  six.     After  de- 
fcii'lants  had  exhausted  their  challenges  two  talesmen  were  called.    It  was  not 
shown  that  defendants  desired  to  challenge  either  of  them;  no  injury,  therefore, 
was  shown  by  the  restriction  of  the  number  of  challenges.    Wolf  v.  Ferryman, 
-J  T.  112(178.  W.  Rep.  77:2 1. 

In  an  action  to  foreclose  a  landlord's  lien,  the  tenant  and  divers  persons  to 
•whom  he  had  given  separate  mortgages  on  the  property  to  be  subjected  to  the 
lien  constitute  but  one  party  in  respect  to  the  number  of  jury  challenges, 
Allen  v.  Waddill,  26  S.  W.  Rep.  273. 

2  Rogers  v.  Armstrong,  30  S.  W.  Rep.  84& 

3  Kelly-Goodfellow  Shoe  Co.  v.  Liberty  Ins.  Co.,  38  S.  W.  Rep.  1027. 
<G,,  C.  &  S,  F.  Ry.  Co.  v.  Keith,  74  T.  287  (11  &  W.  Rep.  1117). 


440  D11AWING    AND    IMPANELING    THE   JURY.       [§§  4G9,  470.- 

a  juror  he  shall  not  be  asked  a  question  the  answer  to  which  may 
show  that  he  has  been  convicted  of  an  offense  which  disqualifies- 
him,  or  that  he  stands  charged  by  indictment  or  other  legal  accusa- 
tion with  theft  or  any  felony.1  Challenges  for  cause  are  made 
orally  when  a  sufficient  number  of  jurors  have  been  drawn  to  con- 
stitute a  jury.2 

The  trial  court  may  allow  the  challenge  of  a  juror  for  cause  on 
other  grounds  than  those  which  the  statute  declares  shall  render 
him  disqualified  in  the  particular  case.  This  power  is  discretionary, 
and  when  exercised  it  will  not  be  revised  unless  it  has  resulted  in 
preventing  a  fair  and  impartial  trial.3 

§  469.  Challenge  to  be  decided  promptly. 

The  court  must  decide  without  delay  any  challenge  to  a  particu- 
lar juror;  and  when  the  challenge  is  sustained  the  juror  must  be- 
discharged  from  further  attendance  or  from  the  particular  case,  as 
the  case  may  be.4 

§470.  Swearing  the  jury. 

When  the  jury  has  been  selected,  such  of  them  as  have  not  been 
previously  sworn  for  the  trial  of  civil  causes  must  be  sworn  by 
the  court,  or  under  its  direction.  Before  the  trial  of  any  civil 
cause  the  jurors  must  be  sworn  by  the  court,  or  under  its  direction. 
The  form  of  oath  to  be  administered  is  in  substance  as  follows: 
"  You,  and  each  of  you,  do  solemnly  swear  that  in  all  cases  between 
parties  which  shall  be  to  you  submitted,  you  will  a  true  verdict 
render,  according  to  the  law  as  it  may  be  given  you  in  charge  by 
the  court,  and  to  the  evidence  submitted  to  you  under  the  rulings 
of  the  court,  so  help  you  God." 5 

It  seems  that  a  substantial  compliance  with  the  statute  as  to  the- 
form  of  oath  administered  is  sufficient.  A  form  in  general  use  in 
the  state  is  to  the  effect  that  the  jury  "  will  well  and  truly  try  the 
issue  joined  between  the  parties."  This  is  held  to  be  a  substantial 
compliance  with  the  statute.  It  is  held,  also,  that  it  is  too  late  after 
verdict  and  judgment  to  object  to  the  form  of  the  oath.6 

In  a  civil  cause,  the  fact  that  the  record  does  not  show  that  the 

1  R.  S.  3208-3210. 

2  R.  S.  3214 

3  Couts  v.  Neer,  70  T.  468  (9  S.  W.  Rep.  40);  H.  &  T.  C.  Ry.  Co.  v.  Terrell,  69  T. 
650  (7  S.  W.  Rep.  670);  G.,  H.  &  S.  A.  Ry.  Co.  v.  Thornsberry,  17  S.  W.  Rep.  521. 
It  was  error  in  the  court  to  refuse  to  allow  defendant's  counsel  to  ask  each  of 
the  jurors  the  question:  "  Do  you  believe  that  if  a  person  commits  suicide  it  is 
conclusive  evidence  that  he  was  insane  at  the  time  of  committing  the  act? "" 
Texas  Mut  L.  Ins.  Co.  v.  Brown,  2  U.  C.  160. 

4  R.  S.  3215. 

5  R.  S.  3225-3227. 

6McConnell  v.  Ryan,  1  App.  C.  C.,  §  1020;  Clements  v.  Crawford,  42  T.  601, 


§§  471,  472.]         DRAWING    AND    IMPANELING    THE   JURY.  441 

jury  trying  the  cause  was  s\\  orn  affords  no  ground  for  reversal,  no- 
objection  bein^-  taken  in  the  court  below.1  The  fact  that  a  juror 
:i<>t  sworn  is  no  ground  of  error,  unless  it  be  made  to  appear 
that  the  party  complaining  did  not  know  such  fact  at  the  time  of 
the  trial.- 

£471.  Number  required  to  compose  a  jury. 

A  jury  in  the  district  court  is  composed  of  twelve  men ; 3  but 
tin-  parties  may  agree,  in  a  particular  case,  to  try  with  a  less  num- 
ber.4 A  jury  in  the  county  court  consists  of  six  men.5 

§  472.  Number  required  to  render  a  verdict. 

The  constitution  provides  that  nine  members  of  the  jury,  con- 
curring, may  render  a  verdict  in  the  district  court,  and  that  when 
the  verdict  is  rendered  by  a  less  number  than  the  whole,  it  shall  be 
signed  by  every  member  of  the  jury  concurring  in  it;  but  power  is 
given  to  the  legislature  to  change  or  modify  this  provision.6  The* 
legislature  has  provided  that  no  verdict  shall  be  rendered  in  any 
cause  except  upon  the  concurrence  of  all  the  members  of  the  jury 
trying  the  same.7 

Where,  pending  the  trial  of  any  case  in  the  district  court,  one- 
or  more  of  the  jurors,  not  exceeding  three,  may  die  or  be  disabled 
from  sitting,  the  remainder  of  the  jury  may  render  the  verdict;  but 
in  such  case  the  verdict  must  be  signed  by  every  remaining  mem- 
ber of  the  jury.8  By  another  provision  of  the  statute  the  jury  must 
be  discharged  when  by  sickness  or  other  cause  their  number  is  re- 
duced below  the  number  required  to  constitute  a  jury.9 

By  mental  distress  of  a  juror,  occasioned  by  sickness  in  his  fam- 
ily or  of  others  demanding  his  presence  at  home  or  elsewhere,  he  is 
not  "  disabled  from  sitting,"  so  as  to  empower  the  remainder  of  the 
jury  to  render  the  verdict  over  the  objections  of  either  party.10 

•Freiberg  v.  Lowe,  61  T.  436;  Clark  v.  Davis,  7  T.  556. 

2  Powell  v.  Haley,  28  T.  53. 

'Const,  art  V,  §  13;  R  S.  3228. 

«  R  S.  3228. 

8 Const,  art,  V,  §  17;  R  S.  3230.  Where  the  transcript  recites,  "a  jury  came 
of  good  and  lawful  men,  R  G.  Childress  and  eleven  others,"  the  objection  that 
the  record  does  not  show  that  a  jury  of  twelve  men  were  impaneled  to  try  the 
cause  is  frivolous.  Sears  v.  Green*,  1  U.  C.  727,  citing  Clark  v.  Davis,  7  T.  560^ 
Johnson  v.  Smith,  14  T.  412. 

6  Const,  art  V,  §  13.  This  provision  took  immediate  effect  and  until  the  en- 
actment of  the  present  law  (act  August  1,  1876),  which  restored  the  old  rule,  a. 
verdict  was  valid  in  which  nine  jurors  concurred.  Bowen  v.  Davis,  48  T.  101. 

?R  S.  3231. 

8R  S.  1323,  3229;  Const,  art  V,  §  13. 

«  R  S.  1312. 

10  H.  &  T.  C.  Ry.  Co.  v.  Waller,  56  T.  331.  It  is  held  that  mere  mental  distress 
is  not  the  character  of  disability  which  the  constitution  classes  side  by  side 
with  death.  "  If  a  juror^  becomes  so  sick  as  to  be  unable  to  sit  longer,  he  is- 


44:2  DRAWING  AND  IMPANELING  THE  JUKY.         [§  472. 

"When  a  juror  is  excused  from  service  by  counsel  for  both  parties 
after  the  trial  has  begun,  and  a  verdict  is  rendered  by  the  remain- 
ing eleven,  it  is  not  necessary  that  all  should  sign  it.1  In  an  action 
in  the  county  court  the  record  showed  that  the  parties  agreed  to 
try  the  cause  with  five  jurors,  and  it  was  held  that  the  signature 
of  the  foreman  to  the  verdict  was  sufficient.2 

plainly  disabled  from  sitting  (citing  Ray  v.  State,  4  App.  454) ;  if  by  reason  of  some 
casualty  or  otherwise  he  is  physically  prostrated,  so  as  to  be  wholly  incapable 
of  sitting  as  a  juror,  or  loses  his  mental  powers,  so  as  to  become  insane  or  idiotic, 
then,  too,  he  would  be  disabled  from  acting  as  a  juror."  But  without  deeming 
it  proper  to  attempt  to  define  fully  the  meaning  of  the  expression  used  in  the 
constitution,  the  court  holds  that  the  causes  which  disable  a  juror  from  sitting, 
and  justify  the  extreme  course  of  allowing,  over  a  party's  objection,  a  verdict 
to  be  rendered  by  the  remainder  of  the  jury,  must  be  of  a  nature  more  immedi- 
ately showing  his  physical  or  mental  incapacity  than  mere  mental  distress  oc- 
casioned by  sickness  of  others,  and  the  feeling  that  duty  to  the  sick  demanded 
his  presence  elsewhere.  Extreme  cases  of  the  kind,  however  strongly  they  may 
appeal  to  the  court  to  release  the  juror,  do  not  belong  to  the  class  provided  for 
by  the  constitution  or  statute. 

1  Tram  Lumber  Co.  v.  Hancock,  70  T.  312  (7  S.  W.  Rep.  724). 

2Bluefields  Banana  Co.  v.  Wolfe,  22  S.  W.  Rep.  269. 


CHAPTER  XXYIII. 

OPENING  THE  CASE. 


473.  Order  of  proceedings  on  trial  by 

jury. 

474.  Right  to  open  and  close. 


§  475.  Right  to  open  and  close  in  pro- 
ceedings to  condemn  land. 
476.  Admission   to   secure    right  to 
open  and  close. 


p  473.  Order  of  proceedings  on  trial  by  jury. 

The  statute  provides  as  follows:  In  suits  tried  by  a  jury  the  trial 
shall  proceed  in  the  following  order,  unless  the  court  should  for 
good  cause,  to  be  stated  in  the  record,  otherwise  direct : 

1.  The  plaintiff  or  his  counsel  shall  read  his  petition  to  the  jury. 

2.  The  defendant  or  his  counsel  shall  read  his  answer. 

3.  If  there  be  any  intervener,  he  or  his  counsel  shall  read  his 
pleadings. 

4.  The  party,  plaintiff  or  defendant,  upon  whom  rests  the  burden 
of  proof  on  the  whole  case  under  the  pleadings,  shall  then  be  per- 
mitted to  state  to  the  jury  briefly  the  nature  of  his  claim  or  defense 
and  facts  relied  on  in  support  thereof. 

5.  Such  party  shall  then  introduce  his  evidence. 

6.  The  adverse  party  shall  then  be  permitted  to  state  briefly  the 
nature  of  his  defense  or  claim  and  the  facts  relied  on  in  support 
thereof. 

7.  He  shall  then  introduce  his  evidence. 

8.  The  intervener,  if  any,  shall  in  like  manner  be  permitted  to 
make  his  statement,  and  shall  then  introduce  his  evidence. 

9.  The  parties  shall  then  be  confined  to  rebutting  testimony  on 
each  side.1 

?'  474.  Bight  to  open  and  close. 

The  plaintiff  has  the  right  to  open  and  conclude,  both  in  adduc- 
ing his  evidence  and  in  the  argument,  unless  the  burden  of  proof  on 
the  whole  case  under  the  pleadings  rests  upon  the  defendant,  or  un- 
less the  defendant,  or  all  of  the  defendants  if  there  should  be  more 

1 R.  S.  1297.  Where  pleas  have  been  filed  among  the  papers  in  a  cause,  the 
mere  failure  to  state  or  read  them  formally  to  the  jury  at  the  opening  of  the 
trial  should  not  deprive  the  party  of  the  right  to  prove  his  defenses.  Allen  v. 
Hogan,  4  App.  C.  C.,  §  9& 

Reading  to  the  jury  a  portion  of  the  pleadings  to  which  exceptions  have  been 
sustained  is  a  practice  not  to  be  commended.  Smith  v.  Savings  Bank,  1  Civ.  App. 
115  (20  S.  W.  Rep.  1119). 


44A:  OPENING   THE   CASE.  [§  475. 

than  one,  shall,  after  the  issues  of  fact  are  settled  and  before  the- 
trial  commences,  admit  that  the  plaintiff  has  a  good  cause  of  action 
as  set  forth  in  the  petition,  except  so  far  as  it  may  be  defeated,  in 
whole  or  in  part,  by  the  facts  of  the  answer  constituting  a  good  de- 
fense, which  may  be  established  on  the  trial.  This  admission  must 
be  entered  of  record,  and  the  defendant,  or  the  defendants  if  more 
than  one,  then  have  the  right  to  open  and  conclude  in  adducing  the 
evidence  and  in  the  argument  of  the  cause.1 

It  is  held  that  an  error  in  denying  to  a  party  the  privilege  of 
opening  and  closing  cannot  be  regarded  as  immaterial.2  It  is  also- 
held,  on  the  contrary,  that  such  an  error  would  not  be  ground  for 
reversal,  unless  it  is  evident  from  the  record  that  injustice  resulted.3 

In  a  suit  on  a  note  by  the  payee  against  the  maker,  a  plea  of 
want  of  consideration,  it  is  held,  leaves  the  burden  on  the  whole 
case  with  the  plaintiff,  and  he  is  entitled  to  open  and  close.4  Other 
cases  hold  that  the  production  of  the  note  makes  a  prirna  facie  case, 
and  that  a  defendant  who  impeaches  the  consideration  must  sup- 
port his  plea  by  proof.5 

§  475.  Right  to  open  and  close  in  proceedings  to  condemn  land. 

The  rule  in  this  state  is  that  in  proceedings  by  a  railway  com- 
pany to  condemn  land  the  company  is  the  actor,  and  has  the  right 
to  open  and  close,  though  this  seems  to  be  contrary  to  the  weight 
of  authority  in  other  states.6  The  defendant  may,  on  appeal,  admit 

1  Rule  31;  R.  S.  1297,  1299. 

2  G.,  C.  &  S.  F.  Ry.  Co.  v.  Abney,  3  App.  C.  C.,  §  415. 

3  McDonald  v.  Tex.  &  Pac.  R.  Co.,  1  U.  C.  191;  Gaines  v.  Ann,  26  T.  340;  Belt 
v.  Raguet,  27  T.  471. 

<  Franklin  v.  Smith,  1  U.  C.  229;  Solomon  v.  Huey,  1  U.  C.  265,  citing  Delano 
v.  Bartlett,  6  Cush,  367;  Powers  v.  Russell,  13  Pick.  76;  Small  v.  Clewley,  62  Me. 
(16  Am.  Rep.)  412. 

&Tolbert  v.  McBride,  75  T.  95  (12  S.  W.  Rep.  752),  citing  Jones  v.  Holliday,  11 
T.  413;  McAlpin  v.  Finch,  18  T.  835;  Watson  v.  Flanagan,  14  T.  353;  Harris  v. 
Cato,  26  T.  339;  Knight  v.  Holloman,  6  T.  153.  See,  also,  Hogue  v.  Williams,  22 
S.  W.  Rep.  762;  Caruthers  v.  Cherry,  4  App.  C.  C.,  §  118.  On  a  trial  of  the  right 
to  property  which  had  not  been  taken  into  actual  possession,  it  was  not  error  to 
permit  claimants  to  open  and  conclude  the  argument,  although  the  plaintiff* 
had  voluntarily  assumed  the  burden  of  proof  in  the  introduction  of  testimony. 
Marsh  v.  Thomason,  6  Civ.  App.  379  (25  S.  W.  Rep.  43). 

It  was  held  there  was  no  error  in  this  case  in  permitting  an  intervener  to 
open  and  close  the  case.  Johnston  v.  Luling  Mfg.  Co.,  24  S.  W.  Rep.  996.  The- 
burden  is  on  an  administrator  to  show  the  correctness  of  his  account  on  final 
settlement,  and  he  is  entitled  to  open  and  close.  Higgs  v.  Garrison,  27  S.  W. 
Rep.  84. 

It  is  an  established  general  rule  of  evidence  that  the  burden  of  proof  lies  on 
the  party  who  wishes  to  support  his  case  by  a  particular  fact  which  lies  more 
peculiarly  within  his  knowledge,  or  of  which  he  is  supposed  to  be  alone  cogni- 
zant. The  rule  applies  whether  the  fact  be  proved  by  affirmative  or  negative 
evidence.  Hoerr  v.  Coffin,  1  App.  C.  C.,  §  186. 

«G.,  C.  &  S.  F.  Ry.  Co.  v.  Abney,  3  App.  C.  C.,  §  415;  G.,  H.  &  W.  Ry.  Co.  v. 


§  47»J.J  OPENING    THE   C.\  445 


plaintiffs  cause  of  action  —  the  right  to  condemn  the  land,  — 
ami  thus  become  entitled  to  open  and  close  the  argument;1  and 
where  the  proper  admission  is  tiled,  defendant  will  not  lose  his  right 
t<>  "|H?n  and  close  the  argument  by  permitting  the  company  to  in- 
troduce its  evidence  first.  - 

?  476.  Admission  to  secure  right  to  open  and  close. 

The  admission  must  be  made  by  all  the  defendants  before  the 
trial  commences,  and  must  be  entered  of  record.3  A  verbal  admis- 
sion, after  the  close  of  the  evidence,  will  not  give  the  defendant  the 
ri.irht  to  open  and  conclude  the  argument.  When  the  defendant, 
before  the  trial  commences,  admits  specifically  the  plaintiff's  cause 
of  action,  so  as  to  relieve  the  plaintiff  from  adducing  any  proof, 
and  causes  this  admission  to  be  entered  of  record,  then,  and  not  till 
then,  is  he  entitled  to  open  and  conclude  the  argument.4 

When  the  defendant  admits  that  the  plaintiff  has  a  good  cause  of 
action  as  set  forth  in  the  petition,  but  replies  by  plea  in  the  nature 
of  a  plea  in  confession  and  avoidance,  he  is  entitled  to  open  and 
conclude  in  adducing  evidence  and  in  the  argument  ;  but  in  such 
the  admission  should  specify  the  allegations  admitted,  and 
should  not  be  in  general  terms.5  The  admission  of  the  plaintiffs 
cause  of  action,  contemplated  in  the  rule,  is  such  as  that,  if  no  evi- 
dence be  introduced,  the  plaintiff  must  prevail  to  the  extent  of  the 
allegations  of  his  pleadings.  An  admission  of  the  cause  of  action, 
except  as  to  the  value  of  the  subject-matter,  is  not  sufficient.' 
Where  there  is  one  affirmative  fact  important  to  a  recovery  by  the 
plaintiff,  which  is  not  admitted  by  the  defendant,  the  plaintiff  has 
the  right  to  open  and  conclude.7 

Waples,  3  App.  C.  C.,  §  409;  McDonald  v.  Tex.  &  Pac.  R.  Co.,  1  U.  C.  191;  G.,  C. 
&  S.  F.  Ry.  Co.  v.  Ross,  4  App.  C.  C.,  §  87. 

1  Dallas,  P.  &  S.  Ry.  Co.  v.  Day,  3  Civ.  App.  353  (22  S.  W.  Rep.  538);  G.,  H.  <fc 
W.  Ry.  Co.  v.  Waples,  3  App.  C.  C.,  §  409;  Ft.  W.  &  R.  G.  Ry.  Co.  v.  Culver,  4 
App.  C.  C.,  §  5.    The  following  form  of  admission  of  plaintiff's  cause  of  action 
was  approved  in  G.,  H.  &  W.  Ry.  Co.  v.  Waples,  3  App.  C.  C.,  g  409:  "That  the 
plaintiff  in  the  above  cause  is  authorized  to  construct  its  line  of  railroad  through 
Cooke  county,  Texas,  and  that  there  is  a  necessity  for  the  taking  and  appropria- 
tion of  the  land  of  defendants,  described  in  plaintiff's  petition  for  condemnation, 
for  the  purpose  of  its  right  of  way,  and  the  plaintiff  has  tendered  to  the  defend- 
ants §400  in  payment  of  damages;  therefore  the  defendants  take  the  burden  of 
proof  as  to  establishing  damages,  and  ask  the  right  to  open  and  conclude  this 
cause." 

2  Dallas  &  G.  Ry.  Co.  v.  Chenault,  4  App.  C.  C.,  §  111. 

3  Rule  31;  §  474,  supra;  Hittson  v.  State  Nat.  Bank,  14  S.  W.  Rep.  780;  Ayers  v. 
Lancaster,  64  T.  303;  Munn  v.  Martin,  4  App.  C.  C.,  §  60. 

4  Dugey  v.  Hughs,  2  App.  C.  C.,  §  4. 
»  Alstin  v.  Cundiff,  52  T.  453. 

6  Sanders  v.  Bridges,  67  T.  93  (2  S.  W.  Rep.  663);  G.,  H.  &  W.  Ry.  Co.  v.  Waples, 
3  App.  C.  C.,  §  409. 

7  Steed  v.  Petty,  65  T.  490.    The  action  of  the  court  in  permitting  the  defend- 


446  OPENING   THE   CASE.  [§ 

"When  a  defendant  files  in  the  cause  the  admission  required  by 
the  rule,  he  is  entitled  to  open  and  close  in  adducing  evidence  and 
in  the  argument  of  the  cause.  The  rule  securing  this  privilege  con- 
fers a  substantial  right,  the  refusal  of  which  will  be  cause  for  re- 
versal, unless  it  appears  from  the  entire  case  that  the  defendant  has 
not  been  injured.1 

Suit  was  brought  upon  a  policy  of  insurance,  and  in  addition  to 
the  amount  of  the  policy  there  was  a  claim  for  $1,800  as  damages 
and  attorney's  fee.  The  defendant  filed  an  admission  of  plaintiff's 
cause  of  action,  except  in  co  far  as  defeated  by  its  special  answer. 
By  such  answer  defendant  denied  the  right  of  plaintiff  to  recover 
the  damages  and  attorney's  fee  claimed,  in  any  event,  and  especially 
put  in  issue  the  amount  of  the  attorney's  fee,  alleging  $500  to  be 
reasonable.  It  was  held  that  the  admission  did  not  give  the  de- 
fendant the  right  to  open  and  conclude.  After  the  evidence  was 
in,  the  defendant  entered  an  admission  that  the  evidence  adduced 
by  plaintiff,  as  to  the  reasonable  value  of  the  attorney's  fee,  was 
true.  The  evidence  placed  the  value  of  the  fee  variously  at  from 
$500  to  $1,000.  It  was  held  this  admission  came  too  late,  and,  be- 
sides, was  not  of  any  amount  to  be  allowed  as  attorney's  fees.2 

ant's  counsel  to  open  and  conclude  the  argument  will  not  afford  ground  for  re- 
versal, unless  the  record  discloses  that  the  admissions  required  by  the  rule  were 
not  made  and  entered  properly  of  record.  The  presumption  will  be  indulged, 
in  the  absence  of  such  showing,  that  the  action  of  the  court  below  was  correct. 
Jacobs  v.  Hawkins,  63  T.  1. 

1  Ney  v.  Rothe,  61  T.  874.    Before  the  trial  of  a  cause  the  defendant  admitted 
on  the  record  that  "  the  defendant  had  a  good  cause  of  action  as  set  forth  in  the 
petition,  except  in  so  far  as  it  might  be  defeated  in  whole  or  in  part  by  the  facts 
of  the  answer  constituting  a  good  defense  which  might  be  established  on  the 
trial,"  and  it  was  held:  (1)  The  admission  must  be  construed  to  mean  that  the 
defendant  admitted  every  fact  alleged  in  the  petition  which  it  was  necessary 
for  the  plaintiff  to  establish  in  the  first  instance  to  enable  him  to  recover,  but 
did  not  admit  allegations  in  the  petition  which  merely  denied  new  matter  al- 
leged in  the  answer,  the  burden  of  the  proof  of  which  was  upon  the  defendant. 
(2)  Under  such  an  admission  of  record  the  plaintiff  cannot  deny  the  defendant 
the  right  to  open  and  conclude  upon  his  affirmative  defense  by  simply  amend- 
ing the  petition  and  alleging  the  contrary  of  the  defenses  set  up  in  the  answer 
in  confession  and  avoidance.    Smith  v.  Bank,  74  T.  541  (12  S.  W.  Rep.  221). 

When  damages  are  claimed  by  the  defendant  for  maliciously  suing  out  an  at- 
tachment, if  he  admits  the  cause  of  action  set  up  by  the  plaintiff  be  is  entitled 
to  open  in  the  introduction  of  evidence  and  to  conclude  the  argument  in  his 
cross-action.  Parks  v.  Young,  75  T.  278  (12  S.  W.  Rep.  986);  Green  v.  Carlton, 
1  App.  C.  C.,  §  834. 

2  Mut.  L.  Ins.  Co.  v.  Simpson,  28  S.  W.  Rep.  837.    Plaintiff  sued  upon  certain 
promissory  notes  and  caused  an  attachment  to  be  levied  upon  property  claimed 
by  defendant  as  homestead.    On  the  trial  the  defendant  "  admitted  the  plaint- 
iff's cause  of  action  in  full,"  and  only  claimed  that  the  lot  seized  was  exempt 
from  forced  sale,  and  it  was  held  that  the  court  properly  allowed  the  defendant 
to  open  and  close.    Milburn  Wagon  Co.  v.  Kennedy,  75  T.  212  (13  S.  W.  Rep.  28). 


CHAPTER  XXIX. 


COMPETENCY  OF  WITNESSEa 


§  477.  Color  or  interest  does  not  dis- 
qualify. 

478.  Husband  or  wife  may  testify, 
when. 


§  479.  In  actions  by  or  against  execu- 
tors, etc, 
480.  Religious  belief.' 


§  477.  Color  or  interest  does  not  disqualify. 

No  person  is  incompetent  to  testify  on  account  of  color,  nor  be- 
cause he  is  a  party  to  the  suit  or  proceeding  or  interested  in  the 
issue  tried.1  In  suits  instituted  by  or  against  any  county,  the  in- 
habitants of  the  county  may  be  witnesses,  if  otherwise  competent 
according  to  law.2  A  witness  is  presumed  to  be  competent;  the 
burden  of  proof  is  on  the  objector.  The  mere  fact  that  a  witness 
probably  could  not  know  whereof  he  speaks  does  not  render  him 
incompetent;  it  raises  a  question  of  credibility.*  The  fact  that  a 
witness  is  in  the  employ  of  an  agent  of  a  party  cannot  affect  his 
competency.4  The  statute  comprehends  not  only  the  person,  but 
also  the  manner  of  testifying,  whether  it  be  orally  or  by  deposition, 
and  declares,  in  effect,  that  parties  to  a  suit  and  parties  having  a 
pecuniary  interest  in  the  same  shall  hereafter  stand  on  the  same 
footing  with  other  witnesses.5 

§  478.  Husband  or  wife  may  testify,  when. 

The  husband  or  wife  of  a  party  to  a  proceeding,  or  who  is  inter- 
ested in  the  issue  to  be  tried,  is  not  incompetent  to  testify  therein, 
except  as  to  confidential  communications  between  such  husband 
and  wife.6  The  common-law  rule,  which  prohibited  husband  and 

i  R  a  2300;  Woods  v.  Toombs,  36  T.  85. 

*  R  S.  791. 

1  Spann  v.  Glass,  35  T.  761 ;  Rogers  v.  Crain,  30  T.  284.  Since  the  passage  of 
the  above  statute,  which  makes  parties  competent  to  testify  in  their  own  cases 
wihout  reference  to  the  wishes  or  action  of  the  opposing  party,  the  failure  of 
the  court  to  exclude  the  testimony  of  a  party,  in  itself  competent,  because  not 
strictly  connected  with  the  interrogatories  propounded  to  him,  would  not  be 
error,  or  at  least  not  such  error  as  would  require  a  reversal.  Hammond  v. 
Hough,  52  T.  6a 

<  Lion  F.  Ins.  Co.  v.  Starr,  71  T.  733  (12  S.  W.  Rep.  45).  The  ruling  as  to  the 
competency  of  a  witness  will  not  be  revised,  when  the  testimony  of  that  witness 
was  wholly  immaterial  and  could  not  have  influenced  the  verdict.  Zorn  v.  Tar- 
ver,  57  T.  388. 

»  McMillan  v.  Warner,  38  T.  410. 

«RS.230L 


448  COMPETENCY   OF   WITNESSES.  [§  4:79. 

wife  from  testifying  for  or  against  each  other,  was  based  mainly  on 
considerations  of  public  policy,  and  was,  therefore,  not  abrogated 
by  the  act  of  1871,  which  removed  all  disabilities  on  the  ground  of 
interest;1  and  it  is  held  that  neither  the  said  act  of  1871,  nor  the 
article  at  the  head  of  this  section,  gives  the  parties  to  a  divorce  suit 
the  right  to  testify  in  their  own  behalf.2  It  would  seem,  however, 
that  in  all  cases  where  there  is  no  express  statutory  provision  to 
the  contrary,  the  above  article,  which  was  introduced  by  the  Re- 
vised Statutes,  has  removed  all  difficulty.3  The  effect  of  the  statute 
,is  to  make  husbands  and  wives  competent  witnesses  in  every  par- 
ticular except  to  disclose  confidential  communications  between 
themselves.  The  only  question  to  be  determined  in  any  case  is 
whether  the  evidence  proposed  was  a  confidential  communication. 
That  must  be  determined  either  by  the  subject-matter  of  the  com- 
munication or  the  circumstances  under  which  it  was  made,  or  by 
both.  It  is  not  material  how  the  communication  was  made,  whether 
orally  or  in  writing,  and  it  is  held  that  letters  from  the  husband  to 
the  wife,  containing  declarations  in  her  favor,  are  not  competent  in 
her  favor  in  a  contest  with  the  legatees  of  the  husband  touching 
property  in  litigation.  The  death  of  one  of  the  parties  does  not  de- 
stroy the  privilege.4 

§  479.  In  actions  by  or  against  executors,  etc. 

In  actions  by  or  against  executors,  administrators  or  guardians, 
in  which  judgment  may  be  rendered  for  or  against  them  as  such, 
neither  party  is  allowed  to  testify  against  the  other  as  to  any  trans- 
action with  or  statement  by  the  testator,  intestate  or  ward,  unless 
called  to  testify  thereto  by  the  opposite  party ;  these  provisions 
extend  to  and  include  all  actions  by  or  against  the  heirs  or  legal 
representatives  of  a  decedent,  arising  out  of  any  transaction  with 
such  decedent.*  This  statute  was  enacted  in  1871,  except  the  last 
clause,  relating  to  heirs  or  legal  representatives,  which  was  incor- 
porated in  the  Revised  Statutes  of  1879.  It  is  supposed  that  the 
decisions  of  the  supreme  court,  holding  that  the  provisions  of  the 
statute  as  originally  enacted  would  not  be  extended  by  implication 
to  a  class  of  persons  not  named,6  led  to  the  adoption  of  the  added 
clause,  and  it  is  to  be  presumed  that  in  extending  the  exceptions  it 
was  intended  to  name  expressly  every  class  of  persons  who  were 
to  be  embraced  within  them,  and  to  leave  nothing  to  implication ; 

1  Gee  v.  Scott,  48  T.  510. 

2  Stafford  v.  Stafford,  41  T.  112;  Cornish  v.  Cornish,  56  T.  564. 

» Turnley  v.  Texas  B.  &  I.  Co.,  54  T.  451:  Edwards  v.  Dismukes,  53  T.  605;  Cam- 
eron v.  Fay,  55  T.  58;  Conner  v.  Holland,  2  U.  C.  405. 
4  Mitchell  v.  Mitchell,  80  T.  101  (15  S.  W.  Rep.  705). 
&R.  S.  2302. 
6  Roberts  v.  Yarboro,  41  T.  449;  Markham  v.  Carothers,  47  T.  21. 


§4,  •.IlM.ll.NCY    OF    \\TiNKsSES.  449 

it  is  therefore  held  that  "heirs  or  legal  representatives"  cannot  be 
c«>nst nieil  to  mean  devisees  or  legatees.1 

A  person  called  by  the  opposite  party  may  testify.2  One  having 
no  interest  in  common  with  parties  calling  him  as  a  witness,  and  who 
though  nominally  u  party  to  the  suit  has  no  interest  in  the  result, 

n  potent  to  testify  as  to  statements  and  admissions  against  his 
interest  at  the  time  they  were  made  by  a  deceased  person  in  pos- 

>n  of  property  in  litigation  against  those  holding  under  him  as 

•s,  etc.3    The  inhibition  is  applicable  only  to  those  who 

are  punks  to  the  suit,  and  does  not  render  incompetent  other  per- 

\vho,  though  interested  in  the  issue  to  be  tried,  are  not  par- 
ties;4 and  a  remote  \varrantorin  the  chain  of  title,  who  will  not 
in  any  manner  be  bound  by  a  judgment  in  trespass  to  try  title,  is 
not  prohibited  from  testifying.5  Where  a  warrantor  has  been  made 
a  party  to  the  suit  in  such  way  as  to  render  the  judgment  binding 
upon  him  in  favor  of  his  vendees,  he  is  a  party  thereto  within  the 
meaning  of  the  provision  which  prohibits  parties  from  testifying 

inst  the  heirs  or  legal  representatives  of  decedents.6 
The  testimony  prohibited  by  the  statute  has  reference  to  trans- 
actions with  or  statements  by  the  testator,  etc. ;  if  a  knowledge  of 
the  facts  was  derived  by  the  witness  in  any  other  way,  his  testi- 
mony is  not  prohibited  by  the  statute.7 

A  ton  v.  Newton,  77  T.  503  (14  S.  W.  Rep.  157);  Mitchell  v.  Mitchell,  80  T. 
101  (15  S.  W.  Rep.  705);  Curtis  v.  Wilson,  2  Civ.  App.  646  (21  S.  W.  Rep.  787). 
\V lii-re  the  husband  is  incompetent  by  reason  of  interest  to  testify,  the  wife 
also  will  be  where  the  suit  affects  the  community  interest  of  the  husband  and 
wife.  Ne\\ -ton  %.  Newton,  77  T.  508  (14  S.  W.  Rep.  157).  See,  also,  Simpson  v. 
Hn.therton,  62  T.  170. 

-'  Mitchell  v.  Mitchell,  80  T.  101  (15  a  W.  Rep.  705). 

»Oury  v.  Saunders,  77  T.  278  (13  S.  W.  Rep.  1030);  Mitchell  v.  Mitchell,  80  T. 
->  s.  W.  Rep.  705). 

Kiilder  v.  City  of  Brenham,  67  T.  345  (3S.  W.  Rep.  309). 

5  Parker  v.  Cockrell,  31  S.  W.  Rep.  221. 

6  Bennett  v.  Land  &  C.  Co.,  1  Civ.  App.  321  (21  S.  W.  Rep.  126).    The  rule  seems 
to  be  that  mere  nominal  parties  may  testify  (Britton  v.  Tischmaker,  31  S.  W. 
Rep.  241);  but  it  is  held  that  a  party  who  is  improperly  joined  is  incompetent. 
Bilger  v.  Buchanan,  6  S.  W.  Rep.  408. 

.ate  v.  Huff,  4  App.  C.  C.,  §  281.  A  defendant  may  testify  as  to  what  he 
himself  had  done  under  and  by  virtue  of  a  contract  with  the  intestate.  Potter 
v.  Wheat,  53  T.  401.  A  party  suing  an  executrix  should  not  be  permitted  to 
.  that  lit-  intrusted  money  to  the  deceased  to  be  loaned;  this  would  be  evi- 
dence as  to  a  transaction  with  deceased.  Altgelt  v.  Brister,  57  T.  432.  The  evi- 
dence of  a  party  to  a  suit,  in  effect  that  he  did  not  know  that  the  deceased  an- 
cestor of  the  adverse  party  claimed  an  interest  in  the  land  involved  in  the  suit, 
is  admissible,  it  not  appearing  that  the  knowledge  or  want  of  knowledge  de- 
pended on  any  statements  of  deceased.  Mast  v.  Til>l>les.  GO  T.  301.  One  who, 
being  party  to  a  suit,  claims  title  to  land  by  deed  from  a  deceased  mother,  in  a 
suit  where  the  plaintiff's  title  U  a  -,',i.Tiir's  deed  under  execution  sale  to  satisfy 
a  judgment  against  the  d -.-eased  father,  is  not  disqualified  from  testifying  from 
his  own  knowledge  that  the  title  to  the  property  which,  before  judgment,  was 
29 


450  COMPETENCY    OF   WITNESSES.  [§  479, 

A  defendant  who,  in  a  suit  for  property  brought  by  an  admin- 
istrator, disclaims  all  interest,  is  a  competent  witness  to  acts  and 
conversations  of  the  decedent  affecting  the  title.1  An  administra- 
tor is  not  a  competent  witness  to  establish  the  contract  on  which 
he  sues  by  testifying  to  conversations  between  the  deceased  and 
the  defendants.2 

conveyed  to  his  father,  was,  in  fact,  paid  for  with  the  separate  means  of  his 
mother.  Harris  v.  Seinsheimer,  67  T.  356  (3  S.  W.  Rep.  307). 

In  a  suit  against  the  administratrix  to  recover  money  alleged  to  have  been 
collected  for  plaintiff  by  her  intestate,  and  not  paid  over,  the  plaintiff  will  not 
be  permitted  to  detail  in  evidence  the  transaction  between  himself  and  the  in- 
testate, which  it  was  claimed  resulted  in  an  agreement  between  them  that  the 
deceased  should  collect  the  money  and  apply  it  to  the  payment  of  a  note  in  his 
hands  for  collection  against  the  plaintiff.  Heard  v.  Busby.  61  T.  13.  In  a  suit 
against  heirs  to  prove  an  instrument  for  record,  plaintiff,  for  the  purpose  of 
proving  delivery,  will  not  be  permitted  to  testify  that  he  received  the  instru- 
ment through  the  postoffice,  with  a  certain  postmark  on  the  envelope.  This 
would  be  proving  a  transaction  with  a  deceased  person.  Howard  v.  Zimpleman, 
14  S.  W.  Rep.  59. 

In  a  suit  by  an  administrator  on  a  note  payable  to  the  deceased,  a  daughter 
of  deceased,  being  in  possession  of  the  note,  was  made  a  defendant.  She  was 
pennitted  to  testify  that  the  note  was  executed  for  borrowed  money,  and  that 
the  money  loaned  had  been  given  to  her  by  the  deceased,  and  that  the  note  was- 
delivered  to  her  immediately  upon  its  execution,  and  belonged  to  her.  This 
was  held  not  admissible.  Turner  v.  Murchison,  31  S.  W.  Rep.  428. 

An  heir  interested  in  the  title  to  land  in  controversy  is  not  competent  to  tes- 
tify to  the  contents  of  a  lost  deed  executed  by  a  deceased  ancestor  to  him ;  but 
he  is  competent  to  testify  as  to  his  possession  of  the  land  and  the  payment  of 
taxes.  Britton  v.  Tischmaker,  31  S.  W.  Rep.  241. 

On  a  question  of  heirship,  the  witness  testified  positively  that  the  deceased 
was  his  mother,  and  also  that  she  had  told  him  she  was  his  mother,  and  always 
called  him  son;  and  it  was  held  that  whether  the  alleged  statements  of  the  de- 
ceased were  admissible  or  not,  the  information  derived  by  the  witness  from 
other  sources  was  admissible.  It  is  doubted  whether  the  calling  of  a  child  son 
is  a  statement  within  the  meaning  of  the  law.  Brown  v.  Mitchell,  31  S.  W.  Rep. 
621. 

After  a  father's  death  his  son  was  sued  for  land  given  him  by  his  father  by 
parol  contract,  followed  by  possession  and  valuable  improvements.  The  defend- 
ant was  held  a  competent  witness  to  prove  the  transaction.  He  did  not  claim 
the  land  as  heir  or  legal  representative  of  his  father.  Wootters  v.  Hale,  83  T, 
563  (19  S.  W.  Rep.  134).  A  party  to  the  suit  claiming  under  a  parol  gift  from  her 
deceased  father  is  incompetent  to  prove  the  transaction  through  which  she 
claims.  She  would  also  be  incompetent  to  testify  to  the  same  transaction  in 
behalf  of  her  co-claimants  under  the  same  alleged  gift.  James  v.  James.  81  T, 
373  (16  S.  W.  Rep.  1087).  In  an  action  against  an  executor  by  a  plaintiff  claim- 
ing money  under  a  parol  gift  from  the  testator,  it  was  held  that  the  plaintilT 
could  not  testify  in  his  own  behalf  to  any  statements  by  or  transactions  with 
the  deceased  touching  said  parol  gift,  or  to  any  delivery  of  the  money  under  it. 
Hubbard  v.  Cox,  76  T.  239  (13  S.  W.  Rep.  170). 

^Eastham  v.  Roundtree,  56  T.  110.  In  a  contest  among  persons  not  claiming 
to  be  heirs,  t>ver  the  right  to  administer  on  an  estate,  a  woman  who  has  re- 
nounced her  right  as  surviving  wife  is  competent  to  testify  as  to  her  marriage- 
with  the  deceased.  Ingersol  v.  McWillie,  30  S.  W.  Rep.  56. 

2Stringfellow  v.  Montgomery,  57  T.  349.   A  party  to  a  suit  against  heirs,  claim' 


BO.  M'KTKNCY    OF    WITM-- 

Iii  ;i  suit  by  a  surviving  partner,  defendant  may  tostify  as  to 
transactions  with  the  deceased  partner.  A  surviving1  partner  is  not 
the  legal  representative  of  the  deceased  partner.1  The  inhibition 
does  not  extend  to  conversations  with  a  surviving  partner  of  the 
deceased,  though  the  testimony  might  result  in  establishing  a  con- 
tract with  the  linn.  When  a  deceased  contracting  party  was  rep- 
resented in  consummating  the  bargain  by  an  agent  who  is  capable 
of  testifying,  then  the  other  contracting  party,  unites  expressly  ex- 
cluded by  statute,  could  be  a  witness.2  The  widow,  suing  as  the 
representative  of  the  community  estate  of  herself  and  deceased  hus- 
band, is  the  representative  of  the  estate  within  the  meaning  of  the 
statute,  and  the  defendant  is  not  competent  to  testify  as  to  trans- 
actions Avith  the  deceased/' 

The  statute  does  not  apply  to  corporations.  Evidence  of  trans- 
act ions  with  a  deceased  agent  of  a  corporation  is  admissible.4 

?  480.  Religious  belief. 

No  person  is  incompetent  to  testify  on  account  of  his  religious 
opinions,  or  for  want  of  any  religious  belief,5  but  all  oaths  or  affir- 
mations must  be  administered  in  the  mode  most  binding  upon  the 
conscience,  and  are  taken  subject  to  the  pains  and  penalties  of  per- 
jury." 

ing  the  property  through  their  deceased  ancestor,  is  precluded  not  only  from 
testifying  to  statements  made  to  him  by  the  deceased,  and  to  transactions  be- 
t  ween  the  deceased  and  himself,  but  also  as  to  any  such  statements  to  or  trans- 
actions between  deceased  and  third  persons;  and  this  although  occurring  at  a 
time  when  the  witness  had  no  interest  in  such  statements  or  transactions. 
Park-,  v.  Caudle,  58  T.  210. 

>  Campbell  v.  Wallace,  3  App.  C.  C.,  §  434;  Roberts  v.  Yarboro,  41  T.  449. 
-Bennett  v.  Frary,  55  T.  145.     On  the  question  of  defendant's  ownership  of  a 

note  wliidi  (•••inie  into  the  hands  of  himself  and  partner,  defendant  offered  to 
prove  that  at  t lie  dissolution  of  the  partnership  the  note  became  his  property, 
but  was  properly  refused,  his  former  partner  being  dead.  Testimony  that  for 
twelve  or  eighteen  months  after  the  dissolution,  and  during  the  life  of  defend- 
ant's partner,  while  the  note  was  in  defendant's  possession,  he  claimed  it  as  his 
own  property,  was  admissible.  Lunipkin  v.  Montgomery,  25  S.  W.  Rep.  661. 

>  Gurley  v.  Clarkson,  30  S.  W.  Rep.  360. 

4  Kexar  Hldg.  A:  L.  Ass'n  v.  Newman.  -J5  S.  W.  Rep.  462.  A  next  friend  of  minor 
heirs  suing  for  partition  is  incompetent  to  testify  as  to  statements  made  by  de- 
fendants' ancestor;  he  stands  in  the  relation  of  guardian  within  the  meaning  of 
the  statute.  Nor  can  one  of  the  defendants,  when  called  by  his  co-defendants. 
testify  as  to  statements  made  by  the  plaintiff's  ancestor.  Ellis  v.  Stewart.  -J1 
S.  W.'Rep.  585. 

In  a  suit  by  the  widow  and  children  for  damages  against  parties  charged  to- 
have  unlawfully  taken  the  life  of  the  deceased  husband  and  father,  the  defend- 
ants are  competent  witnesses.  They  are  not  within  the  exceptions  of  the  stat- 
ute. Walla. -e  v.  Steven,-*,  74  T.  559  (12  S.  W.  Rep.  283). 

4  Const.,  art.  I,  £  5;  R  S.  2303. 

6 Const,  art.  I,  §  5;  R  S.  3. 


CHAPTER  XXX. 


STATUTORY  RULES  OF  EVIDENCE. 


481.  In  general. 

482.  Instrument  on  which  suit  or  de- 

fense is  founded. 

483.  Instrument  executed  by  testa- 

tor or  intestate. 

484.  Copy  of  instrument  on  file   in 

another  court. 

485.  Assignment,  how  put  in  issue. 

486.  Printed  statute  books. 

487.  Rate  of  interest  in  other  states 

or  countries. 

488.  Suit  on  sworn  account. 

489.  Charters  and  records  of  corpora- 

tions. 

490.  Copies  of  public  records  in  this 

state  admissible  in  evidence. 

491.  Copies  of  judicial  records. 

492.  Probate  records. 

493.  Copies  of  wills,  or  of  the  probate 

or  record  thereof. 

494.  Copies  and  certificates  from  cer- 

tain state  offices. 

495.  Certain  transfers  or  deeds  not  to 

be  withdrawn  from  land  office. 

496.  Notarial  acts  and  certificates. 

497.  Judicial  records  of  other  states. 

498.  Public  records  of  other  states, 

etc.,  how  proved. 

499.  Comptroller's  transcript  in  suits 

against  officers. 

500.  Certified  copies  from  heads  of 

departments. 


§  501.  Assessment    and    payment    of 

taxes,  how  proved. 
502.  Certified  copies  of  chattel  mort- 


503.  Proof  of  appointment  of  execu- 

tors, etc. 

504.  Partition  proceedings   and    de- 

crees for  recovery  of  title. 

505.  Recorded  instruments  admissi- 

ble. 

506.  Copy  of  recorded  instrument  ad- 

missible. 

507.  Affidavit  of  forgery  cf  recorded 

instrument. 

508.  Transcribed  records  of  new  coun- 

ties. 

509.  Translated  copies  of  land  office 

records. 

510.  Copies  of  instruments  filed  prior 

to  1837. 

511.  Certain  titles  not  evidence,  un- 

less, etc. 

512.  Records    of    certain  titles  con- 

firmed;    shall    be     evidence, 
when. 

513.  Copies  of  records  of  county  sur- 

veyors. 

514.  Archives  of  former  governments. 

515.  Miscellaneous  statutory  provis- 

ions. 


§481.  Tn  general. 

The  legislature  is  prohibited  from  passing  any  local  or  special 
law  changing  the  rules  of  evidence  in  judicial  proceedings.1  The 
English  common-law  rules  of  evidence,  as  practiced  and  understood 
in  1836,  are  adopted  in  this  state,  so  far  as  they  may  not  be  incon- 
sistent with  the  statutes  of  the  state  relating  to  evidence.2 

1  Const.,  art.  III,  §  56. 
2R.S.2299. 


STATUTORY  RULES  OF  EVIDENCE.  453 

Statutes  changing  the  rules  of  evidence  are  to  be  classed  with  and 
treated  like  statutes  affecting  the  remedy,  and  are  valid  if  thev  »!<> 
not  impair  antecedent  contracts  or  rights  otherwise  vested.1  The 
doctrine  is  that  there  is  no  vested  right  in  a  rule  of  evidence.  The 
ature  may  prescribe  the  number  of  witnesses  which  shall  be 
necessary  to  establish  a  fact  in  court,  and  may  again,  at  pleasure, 
repeal  or  modify  such  law;  it  may  prescribe  what  shall  and  what 
shall  not  be  evidence  of  a  fact,  whether  it  be  in  writing  or  oral, 
and  whether  it  be  in  reference  to  contracts  existing  at  the  time,  or 
pri'speetiveh •;  it  may  give  to  an  instrument  a  larger  extent  as  evi- 
dence, or  may  withdraw  from  it  all  that  it  had  by  previous  enact- 
ment ;  and  while  a  law  that  should  make  certain  evidence  conclush  e 
which  is  not  so  necessarily  in  and  of  itself,  would  be  void  as  indi- 
rectly working  a  confiscation  of  property,  or  a  destruction  of  vested 
rights,  it  is  within  the  power  of  the  legislature  to  declare  any  cir- 
cumstances or  any  evidence,  however  slight,  pi •///<'/ /;/-•/,  proof  of  a 
fact  to  be  established,  leaving  the  adverse  party  at  liberty  to  rebut 
and  overcome  it  by  contradictory  and  better  evidence.2  In  respect 
to  evidences  of  title,  it  is  said  that  rules  of  evidence  may  be  changed; 
the  instruments  of  title  in  a  party's  possession  may  be  required  to 
be  recorded  once  or  twice  or  several  times;  that  barriers  may  and 
should  be  erected  against  fraud,  perjury  and  forgery,  but  that  these 
are  designed  for  the  protection  of  the  public  and  of  honest  bona 
P'l>  claimants.  They  cannot  be  used  to  assail  and  demolish  the  only 
safeguard  —  the  only  vestige  of  title  by  which  an  individual  is  se- 
cured in  his  property —  without  the  substitution  of  some  other  mode 
of  establishing  his  claim.  Rules  of  evidence  affect  the  remedy,  the 
procedure,  and  the  legislature  may  modify  them  at  pleasure,  pro- 
vided such  changes  come  not  within  the  constitutional  inhibition 
against  laws  impairing  the  obligation  of  contracts,  or  which  are  re- 
trospective in  their  operation.3 

Constitutional  restrictions  for  the  protection  of  vested  rights  do 
not  embrace  legislation  in  respect  to  the  competency  of  witne 

§  482.  Instrument  on  which  suit  or  defense  is  founded. 
When  any  petition,  answer  or  other  pleading  is  founded,  in  whole 
or  in  part,  on  any  instrument  or  note  in  writing,  charged  t<>  have 

1  Rich  v.  Flanders,  39  N.  H.  304,  Myer  on  Vested  Rights,  p.  77. 

2Hickox  v.  Tallman,  38  Barb.  608;  Fales  v.  Wadsworth.  2:;  M- .  568;  Sanders  v. 
Greenstreet,  2:5  Kan.  42.-i:  Howard  v.  Moot,  64  N.  V.  2«i2;  Myer  on  Vested  Rights, 
p.  112,  §§  380,  381. 

3  Paschal  v.  Perez,  7  T.  348.    And  see  Tex.  Mex.  Ry.  Co.  v.  Locke.  74  T.  370,  as 
to  the  validity  of  section  4  of  article  13  of  the  constitution  of  1876,  declaring 
•  •fi-tain  larvl  claims  stale. 

4  Rich  v.  Flanders.  39  X.  H.  304;  Westerman  v.  Westerman.  2.~»  Ohio  St  500; 
John  v.  Bridgman,  27  Ohio  St.  22;  Oliver  v.  Moore,  12  Hi  i-k.  iv.':  Wilson  v.  Wil- 
son, SO  Ind.  472.     Consult,  also.  Myer  on  Vested  Rights.  ??  4o7,  1000,  1202. 


STATUTORY  RULES  OF  EVIDENCE.  [§  482. 

been  executed  by  the  other  party,  or  by  his  authority,  and  not  al- 
>leged  to  be  lost  or  destroyed,  such  instrument  or  note  in  writing 
xvill  be  received  in  evidence  without  proof  of  its  execution,  unless 
the  party  by  whom  or  by  whose  authority  such  instrument  or  note 
in  writing  is  charged  to  have  been  executed  shall  file  his  affidavit 
in  writing,  denying  the  execution  thereof ;  and  this  rule  is  applied 
in  all  suits  against  indorsers  and  sureties  upon  any  instrument  or 
note  in  writing.1  When  the  instrument  upon  which  suit  is  brought 
purports  to  have  been  executed  by  an  attorney  or  agent,  it  is  not 
necessary  to  prove  either  its  execution  by  the  attorney,  or  the  au- 
thority of  the  attorney,  unless  the  defendant  shall  have  denied  its 
execution  under  oath.2  And  where  the  suit  is  upon  a  note  charged 
to  have  been  executed  by  several,  as  partners,  under  a  firm  name, 
they  will  not  be  permitted  to  disprove  the  partnership,  which  im- 
plies the  authority  to  execute  the  note,  unless  they  deny  it  under 

1 R.  S.  2318.  In  order  to  bind  a  party  to  a  written  contract,  it  is  not  neces- 
sary that  his  signature  should  appear  at  the  end  of  it.  If  he  writes  his  name 
in  any  part  of  the  agreement  it  may  be  taken  as  his  signature,  provided  it  was 
there  written  for  the  purpose  of  giving  authenticity  to  the  instrument,  and  thus 
operating  as  a  signature.  Fulshear  v.  Rawdon,  18  T.  275;  Prince  v.  Thompson, 
18  T.  480.  A  plea  of  non  est  factum,  which  admits  the  making  of  a  note  similar 
to  that  sued  on,  except  as  to  seals  attached  to  the  signatures  of  the  defendants, 
which  the  plea  alleges  were  not  contained  in  the  note  signed  by  the  defendants, 
is  a  good  plea.  Muckleroy  v.  Bethany,  23  T.  163.  But  the  signature  being  proved, 
the  burden  of  proof  is  upon  the  defendant  to  show  the  alteration.  Muckleroy 
v.  Bethany,  27  T.  551. 

In  an  action  on  a  sheriff's  bond,  if  the  execution  thereof  is  not  put  in  issue 
by  the  plea  of  non  est  factum,  proof  that  the  bond  was  properly  taken  and  ap- 
proved is  not  necessary  to  establish  its  due  execution  and  acceptance.  Poer  v. 
Brown,  24  T.  34. 

When  a  bond  for  title,  which  may  by  law  be  recorded,  is  made  the  foundation 
of  the  suit,  it  may  be  read  in  evidence  without  proof  of  execution,  unless  denied 
under  oath,  and  the  registration  and  notice  required  by  statute  is  dispensed 
with.  Geary  v.  Cummins,  28  T.  91. 

When  the  defendant's  answer  alleged  the  execution  of  a  receipt  by  plaintiff, 
it  was  admitted  in  evidence  without  proof  of  its  execution.  May  v.  Pollard,  28 
T.  677.  Letters  written  by  the  defendant  to  the  plaintiff,  containing  acknowl- 
edgments of  indebtedness,  may  be  made  the  foundation  of  a  petition,  and  read 
in  evidence  without  proof  of  execution.  Close  v.  Judson,  34  T.  288.  A  receipt 
for  stage  fare  is  an  instrument  in  writing  within  the  meaning  of  the  statute 
(Sawyer  v.  Dulany,  30  T.  479);  and  so  is  a  wagoner's  receipt.  Lewis  v.  Lowery, 
31  T.  663. 

2  Austin  v.  Townes,  10  T.  24;  Reid  v.  Reid,  11  T.  585;  Kelly  v.  Kelly,  12  T.  452; 
Herndon  v.  Ennis,  18  T.  410;  Sawyer  v.  Dulany,  30  T.  479.  When  proof  of  execu- 
tion is  required,  the  authority  of  the  agent  and  its  execution  must  be  shown. 
Brashear  v.  Martin,  25  T.  202.  When  the  contract  declared  upon  does  not  pur- 
port to  be  executed  by  the  defendants  or  by  their  agent,  and  the  plaintiff  seeks 
to  charge  the  defendants  thereon,  he  must,  under  the  issue  formed  by  the  gen- 
eral denial,  prove  the  authority  of  the  agent  to  bind  the  defendants  by  the  con- 
tract in  question.  Compton  v.  Stage  Company,  25  T.  Sup.  67.  But  this  case  was 
overruled  in  Sessunis  v.  Henry,  38  T.  37. 


-±]  'UY    KL'LES    OK    KV1I.K.-  4>~>;> 

oatli  in  their  pit -ailing.1  The  statute  applies  to  an  instrument  which 
does  not  on  its  face  purport  to  be  the  act  of  the  party  on  whose 
liehalf  it  is  alleged  to  have  been  executed.2  It  does  not  render  an 
instrument  evidence  without  proof  against  a  vendee  from  the  party 
it  ing  it  of  property  affected  thereby.3  "\Vhere  the  suit  is  on  a 
n<  >tr  and  to  foreclose  a  chattel  mortgage,  if  no  plea  of  non  est  factum 
is  interposed  the  mortgage  is  admissible  in  evidence  without  proof 
of  its  r\  edition,  and  without  the  tiling  and  notice  required  in  the 
case  of  recorded  instruments.4 

A  pica  of  non  est  factum  not  s*.vorn  to  requires,  as  does  a  general 
denial,  the  production  of  the  instrument  declared  on,  but  dispenses 
with  proof  of  its  execution.  The  rule  applies  although  no  excep- 
tions were  made  to  the  plea  on  account  of  the  defect.5  When  a 
defendant  in  a  suit  on  a  note,  bond,  or  other  instrument  of  writing 
alleged  to  have  been  executed  by  him,  denies  its  execution  under 
oath  by  averring  a  material  alteration  after  the  execution  of  the 
same  without  his  consent,  such  qualified  plea  does  not  put  in  issue 
the  signing  of  the  instrument,  nor  throw  the  burden  of  disproving 
the  alteration  on  the  plaintiff,  but  it  lies  with  the  defendant  to 
prove  the  alteration.6 

iDrew  v.  Harrison,  12  T.  279;  Lea  v.  Hamilton,  12  T.  413.  When  the  instru- 
ment, a  wagoner's  receipt,  was  signed  by  a  single  name,  and  the  petition  set  it 
out  and  averred  that  it  was  executed  as  the  partnership  act  of  the  said  L.  and 
one  T.,  it  was  held  that  if  T.  would  deny  it  he  must  do  so  under  oath.  Lewis  v. 
Lowery,  31  T.  663. 

V.  &  A.  P.  Ry.  Co.  v.  Harrison,  72  T.  478  (10  S.  W.  Rep.  556);  City  Water 
Works  v.  White,  61  T.  536;  I.  &  G.  N.  Ry.  Co.  v.  Tisdale,  74  T.  8  (11  S.  W.  Rep. 
flOO). 

»  Lignoski  v.  Crooker,  86  T.  324  (24  S.  W.  Rep.  278,  788). 

« Freiberg  v.  Brunswick-Balke-Collender  Co.,  4  App.  C.  C.,  §  143.  Suit  was 
brought  on  a  contract  which  on  its  face  purported  to  have  been  executed  "this 
24th.  l*so."  The  written  contract  was  attached  to  the  petition,  and  to  it  ap- 
peared the  name  of  one  subscriuing  witness.  The  petition  alleged  that  the  con- 
tract was  reduced  to  writing  on  the  24th  day  of  January.  1880.  There  being  no 
plea  of  non  est  factum,  and  the  date  of  the  execution  of  the  instrument  having 
been  alleged,  it  was  unnecessary  to  offer  parol  evidence  of  its  date.  In  the  face 
of  such  allegation,  there  could  be  no  variance  between  the  allegation  and  the 
proof.  The  variance  claimed  could  not  be  material,  and  evidence  of  the  true 
date  of  the  contract  could  not  have  operated  as  a  surprise.  The  contract,  being 
one  the  parties  could  enter  into,  was  good  without  date.  An  instrument  which 
i^  MH"1  upon,  if  made  a  part  of  a  petition,  and  filed  with  it  for  the  inspection  of 
tin'  'IrtVndant,  controls  and  cures  any  misdescription  of  it  in  the  body  of  the 
petition.  Longley  v.  Caruthers.  64  T.  •>:. 

5  Fisher  v.  Bowser,  1  U.  C.  346.  An  ancient  document,  purporting  to  be  a  re- 
(•••ipt.  which  is  a  part  of  a  party's  evidence,  but  upon  which  no  pleading  is 
fouMilfl.  may  l>e  impeached  without  an  athMavit  of  forgery  or  won  tst  factum. 
Mcl»onn.'!l  v.  De  Los  Fuentt-s.  7  Civ.  App.  i:*6  (26  S.  W.  Rep.  792). 

b  Richer*  v.  H.-lmcamp.  1  App.  (.'.  •  Wells  v.  Moore,  lo  T.  521.     A  rail- 

n>a<l  company  may.  without  plea  of  non  i-xt  fact  urn.  deny  the  binding  force  of  a 
bill  of  lading  whk-ii  i>  not  alleged  to  have  been  executed  by  or  for  such  coin- 


456  STATUTORY    RULES    OF    EVIDENCE.  [§§  483,  484. 

A  denial  of  partnership  as  alleged  must  be  made  under  oath;1 
and  in  a  suit  against  a  railway  company,  where  its  liability  for  the 
transportation  of  specific  articles  is  alleged  to  result  from  a  part- 
nership with  connecting  lines,  plaintiff  is  not  required  to  prove  the 
partnership  in  the  absence  of  a  denial  under  oath.2  Under  the  pres- 
ent statute,  an  allegation  of  partnership  must  be  put  in  issue  by  a 
verified  plea  in  all  cases.  Under  Paschal's  Digest,  article  1444,  the 
partnership  of  the  defendants  in  a  case  was  put  in  issue  by  a  plea 
not  under  oath.3 

The  plea  of  non  est  factum  relates  to  the  time  of  pleading,  and 
under  it  the  defendant  may  show  that  the  instrument  was  made  void 
by  matter  subsequent  to  its  execution.4 

§  483.  Instrument  executed  by  testator  or  intestate. 

When  any  petition,  answer  or  other  pleading  is  founded,  in  whole 
or  in  part,  on  any  instrument  or  note  in  writing,  charged  to  have 
been  executed  by  any  testator  or  intestate,  it  is  admissible  in  evi- 
dence without  proof  of  its  execution,  unless  some  suspicion  be  cast 
upon  it  by  the  affidavit  of  the  executor  or  administrator  of  such 
testator  or  intestate.5  Where  a  plea  is  filed  by  the  representative 
of  another  person,  mere  negative  averments  in  the  affidavit  do  not 
cast  a  suspicion  upon  the  instrument  sued  on.fi  The  affidavit  may 
be  made  by  the  agent  of  the  administrator ;  and  in  a  case  in  which 
the  administrator  is  unwilling  to  make  it,  it  may,  with  his  consent, 
be  made  by  the  heir;7  or  the  widow  might  be  permitted  to  inter- 
vene and  make  the  affidavit,  where  the  intervention  causes  no 
delay.8 

§  484.  Copy  of  instrument  on  file  in  another  court. 

If  suit  be  brought  on  any  instrument  or  note  in  writing,  filed  in 
any  suit  brought  thereupon  in  any  other  court  of  this  state,  a  certi- 
fied copy  of  such  instrument  or  note  in  writing,  under  the  hand 
and  seal  of  the  clerk  of  the  court  in  which  the  original  may  be 
filed,  will  be  admitted  as  evidence  in  like  manner  as  such  original 

pany,  and  where  no  partnership  is  alleged  as  existing  between  it  and  another 
company  which  appears  to  have  executed  the  bill  of  lading.  Dillingham  vr 
Fischl,  1  Civ.  App.  546  (21  S.  W.  Rep.  554).  See  Blain  v.  Express  Co.,  69  T.  74  (6 
8.  W.  Rep.  679). 

i  R.  S.  1265. 

2 1.  &  G.  N.  Ry.  Co.  v.  Tisdale,  74  T.  8  (11  S.  W.  Rep.  900).  See  Franklin  v. 
Ton  jours,  1  App.  C.  C.,  §  506;  Cleveland  v.  Duggan,  1  App.  C.  C.,  §  82. 

3  Congdon  v.  Monroe,  51  T.  109;  Gushing  v.  Smith,  43  T.  261. 

« H.  &  T.  C.  Ry.  Co.  v.  Chandler,  51  T.  416. 

6R.  S.  2318;  Tarpley  v.  Poage,  2  T.  139;  Parr  v.  Johnston,  15  T.  294;  Barnett  v, 
Logue,  29  T.  282. 

«Van  Hook  v.  Letchford,  35  T.  599. 

7  Eborn  v.  Zimpleman,  47  T.  504. 

8  Solomon  v.  Huey,  1  U.  C.  265. 


iTT"KV    i;n .!  -  :i)KNCE.  4.">  7 

miirht  he;  but  if  the  defendant  shall  plead  and  file  an  affidavit 
under  oath  that  such  original  instrument  or  note  in  writing  has  not 
been  executed  by  him  or  by  his  authority,  the  clerk  of  the  court  hav- 
ing the  c-astody  of  such  original  is  required,  on  being  sub^t-naed 
as  a  witness,  to  attend  with  the  same  on  trial  of  the  cause.1 

§  485.  Assignment,  how  put  in  issue. 

When  a  suit  shall  be  instituted  by  any  assignee  or  indorsee  of 
any  written  instrument,  the  assignment  or  indorsement  thereof  will 
be  regarded  as  fully  proved,  unless  the  defendant  deny  in  his  plea 
that  the  same  is  genuine,  and  tile  with  the  papers  in  the  cause  an 
affidavit,  stating  that  he  has  good  cause  to  believe,  and  verily  does 
believe,  that  such  assignment  or  indorsement  is  forged.2  The  ne- 
cessity of  proof  is  dispensed  with,  although  the  assignment  is  not 
indorsed  upon  the  obligation,  but  is  made  by  a  separate  instrument.' 
Farol  evidence  is  not  admissible  to  prove  that  the  assignor,  drawer 
or  indorser  has  released  the  holder  of  a  bill  or  note  from  his  obliga- 
tion to  use  due  diligence  to  collect  the  same.4 

§  486.  Printed  statute  books. 

The  printed  statute  books  of  this  state,  of  the  United  States,  of 
the  District  of  Columbia,  or  of  any  state  or  territory  of  the  United 
States,  or  of  any  foreign  government  purporting  to  have  been 
printed  under  the  authority  thereof,  are  received  as  evidence  of  the 
acts  and  resolutions  therein  contained.  A  certified  copy  under  the 
hand  and  seal  of  the  secretary  of  state  of  this  state,  of  any  act  or 
resolution  contained  in  any  of  such  printed  statute  books  depos 
in  his  office,  or  of  any  law  or  bill,  public  or  private,  deposited  in 
his  office  in  accordance  with  law,  is  received  as  evidence  thereof.* 

!R  S.  2314.  When  thf  instnum'nt  is  on  file  in  a  cause  in  the  same  court,  it 
may,  by  permission  of  the  court,  be  withdrawn  from  the  file  for  the  pur|>ose  of 
being  used  in  evidence  in  another  cause;  or  the  clerk  of  the  court  may  be  com- 
pelled to  attend  with  the  instrument.  Morrison  v.  Bean.  22  T.  ."ill. 

2R  S.  313.  I1,'*;.").  When  the  assignment  is  made  by  an  agent  his  authority 
must  be  denied  under  oath.  Herndon  v.  Ennis,  18  T.  410. 

'Durst  v.  Swift,  11  T.  27:',. 

«RS.  310. 

»R  S.  2304,  2303.  The  y>"st  evidence  of  the  terms  of  an  act  of  the  legislature 
is  a  copy  of  the  enrolled  bill,  duly  certified:  and  it  is  admissible  to  show  a  variance 
between  the  statute  as  passed  by  the  legislature,  and  as  printed  among  the  pub- 
lished acts.  Central  R  Co.  v.  Hearn.  32  T.  '.I''-. 

The  certificate  of  the  secretary  of  state  of  another  state  attached  to  what  pur- 
ports to  be  a  copy  of  a  legislative  act  of  his  state,  and  authenticated  hy  the  great 
seal  of  state,  which  declares  that  the  copy  is  "an  exact  transcript  of  an  act 
of  the  general  assembly,"  etc.,  "  as  the  same  appears  of  record  on  page  180  of  the 
official  published  acts  of  that  year,  now  in  my  oftio-."  wa*  properly  admitted  in 
evidence  to  prove  the  legislative  act.  Harvey  v.  Cummings,  68  T.  599  (5  S.  W. 
Rep.  513). 


458  STATUTORY  RULES  OF  EVIDENCE.       [_§§  487,  488. 

§  487.  Rate  of  interest  in  other  states  or  countries. 

The  rate  of  interest  in  any  other  state,  territory  or  country  is 
presumed  to  be  the  same  as  that  established  by  law  in  this  state, 
and  may  be  recovered  accordingly  without  allegation  or  proof  of 
the  rate  of  interest  in  such  other  state,  territory  or  country,  unless 
the  rate  of  interest  in  such  other  country  be  alleged  and  proved.1 

£  488.  Suit  on  sworn  account. 

When  any  action  or  defense  is  founded  upon  an  open  account, 
supported  by  the  affidavit  of  the  party,  his  agent  or  attorney,  taken 
before  some  officer  authorized  to  administer  oaths,  to  the  effect  that 
such  account  is,  within  the  knowledge  of  the  affiant,  just  and  true, 
that  it  is  due,  and  that  all  just  and  lawful  offsets,  payments  and 
credits  have  been  allowed,  such  sworn  account  is  taken  as  prima 
facie  evidence,  unless  the  other  party  shall,  before  announcing  ready 
for  trial,  file  a  written  denial  under  oath,  stating  that  such  account 
is  not  just  or  true,  in  whole  or  in  part,  and  if  in  part  only,  stating 
the  items  and  particulars  which  are  unjust.  "Where  he  fails  to  file 
such  affidavit  he  will  not  be  permitted  to  deny  the  account,  or  any 
item  therein,  as  the  case  may  be.  When  the  counter-affidavit  is  filed 
on  the  day  of  the  trial,  the  party  claiming  under  the  account  has 
the  right  to  continue  the  cause  until  the  next  term.2  This  act  was 
passed  in  1883.  It  had  been  enacted  in  1879,  that  an  answer  setting 
up  that  an  account  which  is  the  foundation  of  the  plaintiff's  action, 
and  supported  by  an  affidavit,  is  not  just,  must  be  verified  by  affi- 
davit, and  must  set  forth  the  items  and  particulars  which  are  unjust.3 
It  is  held  that  this  latter  statute  regulates  the  manner  of  pleading, 
but  does  not  relieve  a  plaintiff  from  the  necessity  of  proving  his  case 
by  competent  evidence.  The  statute  first  above  mentioned  (that  of 
1883)  prescribes  a  rule  of  evidence  applicable  only  to  open  accounts. 
The  word  account,  as  here  used,  has  its  popular  rather  than  a  tech- 
nical signification,  and  applies  to  transactions  between  persons,  in 
which,  by  sale  upon  the  one  side  and  purchase  upon  the  other,  the 
relation  of  debtor  and  creditor  is  created  by  general  course  of  deal- 
ing, and  does  not  apply  to  one  or  more  isolated  transactions  resting 
upon  special  contract.4 

i  R.  S.  2317;  Moseby  v.  Burrow,  52  T.  396;  Henry  v.  Roe,  83  T.  446  (18  S.  W.  Rep. 
80S):  Randall  v.  Meredith,  11  S.  W.  Rep.  170. 
-'R.  S.  2323. 

3  R.  S.  1265. 

4  McCamant  v.  Batsell,  59  T.  363.    This  suit  was  based  upon  the  former  surety- 
ship of  plaintiff  for  the  defendant,  and  the  payment  by  plaintiff  of  defendant's 
debt,  and  it  was  held  that  the  cause  of  action  could  not  be  stated  as  an  "  account " 
or  "open  account"  within  the  meaning  of  the  statute,  which  the  plaintiff  might 
lestablish  by  his  ex  parte  affidavit.     When  the  liability  of  the  defendant  rests 
upon  the  fact  that  the  plaintiff  was  his  surety  and  has  paid  a  debt  for  him,  that 
liability  is  the  result  of  contract,  which  fixes  its  extent,  the  law  fixing  the  time 


STATl  tOKl    Kl  !..•  - 

A  claim  against  a  railroad  company  for  damages  for  the  loss  or 
•destruction  of  goods  is  not  an  account  within  the  meaning  of  the 
statute:  the  claim  must  be  shown  to  exist  by  contract,  either  ex- 
-  or  implied.1  A  claim  for  property  converted  is  not  an  account.2 
I'-,  entitle  a  party  to  the  benefit  of  the  statute,  the  account  should 
have  been  contracted  in  the  ordinary  course  of  trade,  and  should 
exist  by  virtue  of  a  contract  between  the  parties  to  the  suit,  and 
not  be  incidental  to  the  suit,  arising  upon  a  contract  between  the 
plaintiff  and  third  parties.  The  suit  must  be  brought  on  the  ac- 
count, and  upon  its  face  it  ought,  at  least,  to  show  a  transaction 
between  the  parties,  by  which  the  defendant  is  prima,  facie  bound 
for  the  payment  of  the  several  items  charged  for  goods  sold  and 
delivered,  or  other  transaction  legitimately  forming  the  basis  of  an 
int  proper.3  The  statute  does  not  require  that  the  items  be  en- 
tered in  an  account  book.4 

When  suit  is  brought  upon  an  account  verified  by  affidavit,  the 
correctness  of  which  is  denied  by  the  defendant  under  oath,  the 
jn-'iin<i  fade  proof  made  by  the  sworn  account  is  destroyed;  and 
this  result  cannot  be  obviated  by  filing  a  supplemental  petition 
under  oath  which  in  effect  but  reiterates  the  original  pleading  re- 
garding the  justness  of  the  account.5  No  proof  is  required  as  to  items 
of  the  account  not  contested  by  the  answer.6  The  question  prop- 
erly arises  under  the  statute,  whether  the  counter-affidavit  alone 
overcomes  the  prima  facie  case  made  by  the  sworn  account,  or 
whether  it  only  gives  the  adverse  party  the  right  to  contest.  He 

when  it  should  be  paid;  thus  the  element  of  uncertainty  is  wanting,  and  it  can- 
not constitute  an  "account ''  within  the  meaning  of  the  statute.  It  seems  that 
the  statute  contemplates  a  contract  in  which  some  of  the  terms  are  uncertain. 
Tli us.  if  the  contract  be  for  the  sale  and  delivery  of  goods,  and  the  price,  terms 
and  time  of  payment  are  all  agreed  upon  and  settled,  the  transaction  is  a  simple 
contract  and  not  an  account;  but  if  either  the  price,  terms  or  time  of  payment, 
one  or  all,  are  left  uncertain,  not  agreed  upon,  the  transaction  comes  under  the 
statute  —  it  is  an  open  account.  See,  also,  T.  &  St.  L.  Ry.  Co.  v.  Smith,  2  App. 
<  .  (  ..  ?'  ")1;  G.,  H.  &  S.  A.  Ry.  Co.  v.  Schwartz,  2  App.  C.  C.,  §  758;  Murray  v. 
rty,  •>  App.  C.  C.,  S107. 

To  enforce  a  lien  against  a  railway  in  favor  of  laborers  under  a  subcontractor, 
proof  must  be  made  that  the  labor  was  performed  at  the  instance  of  the  subcon- 
tractor and  "  that  the  wages  are  due."  Such  an  account  is  not  admissible  in 
t-viileiice  under  a  sworn  statement  as  to  its  correctness  as  an  "open  account" 
Au>tm  &  N.  W.  R.  R.  Co.  v.  Daniels,  62  T.  70. 

i  H.  &  T.  C.  Ry.  Co.  v.  White,  1  App.  C.  C.,  §  104;  G.,  H.  &  S.  A.  Ry.  Co.  v.  Gil- 
di-a.  2  App.  C.  C.,  §271. 

*  T.  &  P.  Ry.  Co.  v.  Looby,  1  App.  C.  C.,  S  :>77. 

»  H.  &  T.  C.  Ry.  Co.  v.  Hays.^  1  App.  < '.  <  '..  ?  7V.i;  G.,  H.  &  S.  A.  Ry.  Co.  v.  Mor- 
ris, 1  App.  '  i  T.  A  claim  for  various  items  of  merchandise  sold  and  de- 
livered in  which  there  are  inU-rminglfd  itnns  for  money  advanced  is  properly 
regarded  as  an  account.  Calm  v.  Salinas.  2  App.  C.  C.,  ?  10-L 

4  Robinson  v.  Boganlus.  2  App.  C.  C.,  55  828. 

a  Olive  v.  H.-st.-r.  W  T.  I'.K). 

"Sliuford  v.  Chinski.  2G  S.  W.  R.-p.  141. 


460  STATUTORY  RULES  OF  EVIDENCE.  [§  489. 

certainly  cannot  be  permitted  to  deny  the  account  without  such 
affidavit;  that  is,  the  sworn  account  is  conclusive  in  such  case.  The 
statute  in  the  first  place  declares  that  the  sworn  account  shall  be 
taken  asprima  facie  evidence  in  absence  of  a  counter-affidavit,  and 
then  adds :  "  Where  he  fails  to  file  such  affidavit  he  shall  not  be 
permitted  to  deny  the  account,  or  any  item  therein,  as  the  case  may 
be."  "Where,  then,  is  the  burden  of  proof  when  a  counter-affidavit 
is  tiled?  The  decisions  seem  to  place  it  on  the  plaintiff.1 

A  counter-claim  is  consistent  with  the  justice  of  the  claim  sued 
upon,  and  may  be  interposed  and  recovered  upon  without  the  ne- 
cessity of  filing  an  affidavit  impeaching  the  account.2  Where  suit 
is  brought  against  an  administrator  on  a  verified  account  claimed 
to  be  due  from  the  estate,  such  account  is  not  evidence  in  behalf  of 
the  plaintiff,  as  it  involves  a  transaction  with  the  decedent.3 

The  affidavit  must  state  that  the  account  is,  within  the  knowl- 
edge of  the  affiant,  just  and  true;  otherwise  it  may  be  excluded  as 
evidence.4  It  must  state  that  all  just  and  lawful  offsets,  credits  and 
payments  have  been  allowed,  and  that  the  account  is  due,  or  it  will 
not  alone  support  a  judgment  by  default;5  and  each  item  must  be 
due  at  the  time  the  affidavit  is  made.6  The  account  must  be  veri- 
fied at  the  time  suit  is  brought,  or  at  least  by  way  of  amendment  a 
reasonable  time  before  the  trial.  It  was  held  error  to  permit  the 
account  to  be  verified  after  appeal  to  the  county  court  and  immedi- 
ately before  trial.7 

§  489.  Charters  and  records  of  corporations. 

Charters  of  private  corporations  are  filed  in  the  office  of  the  sec- 
retary of  state,  and  are  recorded  at  length  in  a  book  kept  for  that 

1  Rives  v.  Habermacher,  1  App.  C.  C.,  g  747:  G.,  H.  &  S.  A.  Ry.  Co.  v.  McTiegue, 

1  App.  C.  C.,  §  461;  Cahn  v.  Salinas.  2  App.  C.  C.,  §  104;  Robinson  v.  Bogardus, 

2  App.  C.  C.,  §  828.     See  English  v.  Miltenberger,  51  T.  296,  where  the  act  of  1874 
is  construed.     This  act  provided  that  a  sworn  account  should  make  a  prhna 
facie  case,  which  might  be  rebutted  on  filing  a  counter-affidavit,  as  under  the 
present  statute. 

2  Bach  v.  Ginacchio,  1  App.  C.  C.,  §  1316;  G.,  H.  &  S.  A.  Ry.  Co.  v.  Schwartz,  2 
App.  C.  C.,  §  759;  English  v.  Miltenberger,  51  T.  296. 

SR.  S.  2302;  Leverett  v.  Wherry,  4  App.  C.  C.,  §  187.  The  affidavit  to  an  ac- 
count against  a  partnership  proves  the  partnership,  unless  the  same  is  denied 
under  oath.  Carder  v.  Wilder,  1  App.  C.  C.,  §  14. 

<  Shandy  v.  Conrates,  1  App.  C.  C.,  §  235. 

8  Duer  v.  Endres,  1  App.  C.  C.,  §  323. 

"Shaunnessey  v.  Le  Gierse,  1  App.  C.  C.,  §  379;  Sims  v.  Howell,  4  App.  C.  C., 
§180. 

7  Bl.ikeley  v.  Wimberley,  4  App.  C.  C.,  S  64.  A  counter-affidavit  may  be  filed 
after  appeal  to  the  county  court,  provided  it  does  not  attempt  to  set  up  a 
counter-claim  or  set-off,  but  only  to  contest  the  account.  Tex.  &  Pac.  Ry.  Co. 
v.  Norton,  1  App.  C.  C.,  g  403.  In  a  suit  on  an  account  by  the  assignee  thereof, 
an  affidavit  made  by  the  assignor  after  the  assignment  is  not  a  compliance  with 
the  statute.  Carpenter  v.  Histo.ical  Pub.  Co.,  24  S.  W.  Rep.  085. 


£  4   '  8TATI   loicv    i;i  I.I.-    W  4»'.l 

purpo-.-.     The  oriirinal   remains  on  file  in  the  office,  and  a  copy 
thereof,  or  of  the  record,  certified  under  the  great  seal  of  the 

idence  of  the  creation  of  the  corporation.1     The  records  of 
any  company  incorporated  under  the  provisions  of  any  statute  of 
tliis   state,  or  copies   thereof  duly  authenticated    by  the  signature 
of  the  president  and  set-rotary  of  such  company,  under  the  corpo- 
t hereof,  are  competent  evidence  in  any  action  or  proceed- 
ing to  which   such  corporation   may  be  a   party.2     The  directors 
must  cause  a  record  to  be  kept  of  all  stock  subscribed  and  trans- 
d.  and  of  ail  business  transactions.'     In  a  suit  by  a  corporation 
>ne  of  its  members  to  collect  an  assessment,  the  best  evi- 
e  that  a1  :ient  was  made  is  the  record  of  the  order  of 

the  board  of  directors,  and  the  loss  of  the  original  record  must  be 
shown  before  parol  evidence  is  admissible.4 

>0.  Copies  of  public  records  in  this  state  admissible  in  evidence. 
Copies  of  the  records  of  all  public  officers  and  courts  of  this  state, 
certified  to  under  the  hand  and  seal  (if  there  be  one)  of  the  lawful 
possessor  of  such  records,  will  be  admitted  as  evidence  in  all  cases 
where  the   records  themselves  would  be  admitted.5     They  will  be 
ed   without  further  proof  of  the  original,  and  without  the 
filing  previous  to  the  trial,  and  notice  to  the  opposite  party.8     But 
:s  which  are  mere  private  property,  and  which  do  not  belong 
to  or  constitute  archives  of  a  public  office,  derive  no  legal  authen- 
ticity from  the  certificate  of  a  public  officer.7    And  when  documents 

1  R.  S.  04--,. 

»  R.  S.  662. 

*  (Juadalupe  &  San  A.  R  Stock  Ass'n  v.  West.  76  T.  461  (13  a  W.  Rep.  807). 
The  acts  of  a  private  corporation  may  be  shown  by  other  te-timony  than  a  rec- 
ord or  minute  of  its  pro<  .uless  tin-  ^tatnte  declare*  to  the  contrary. 
tl  may  IK-  |.n .\»M|  Kv  direct  evidence  or  inferred  fn-in  circumstances.     Ft. 
W.  I'uh.  ( ',,"  v.  Hit-Mil.  WT.  210  (14  S.  W.  Rep.  N4:J;  Ifi  S.  W  The  pro- 
•i^s  and  resolutions  of  a  private  corporation  omitted  from  the  recorded 
minutes  may  be  shown  by  other  twtihxmy.     Tin-  P •••  "i-d-  .-IP-  ^rima  facie  evi- 
dence of  the  fact-  tln-n -in  -tated.  and  that  all  tilings  were  rightly  done.     Tlie 
lisputin^  sur-li  a  n -cord  must  be  convincing  and  satisfactory.    Pickett 
v.  Abney,  ^-t  T.  '.r.    r.i  S.  W.  !;.  |..  ^:>9).    Books  of  a  corporation  containing  ac- 
count- of  tran-actions  by  the  corporation  through  its  agents  are  usualh 
to  be  competent  evidence  on  an  issue  b»-tween  tin-  r-orjioration  and  one  of  its 
ni.-iiil.-T-.     Fraii--.-T--x.iM  I-  < '».  v.  Chaptivi-.  ::  S.  \V.  !:••]..  Ml. 

»R  S.  •-.;<»;:  Hou-ton  v.  I'en  10;   Hul»-i-t    v.  Marti-  tt.  '.»  T.  97;  Eakin  v. 

Shmuak.T.  r.'  T.  :>!:  Poor  v.  B<iv«-e.  12  T.  4M:  Kvitt*  v.  i;..th.  61  T.  81. 
6Hul>ert  v.  Bartlett.'.»  T.  '.<:.     Where  a  ronmii— i<-iier  of  the  general  land  office 
It  in  hi-  office,  it  was  hel.l  tliat  it  was  a  good  objection  that 
the  records  were  not  pro  lured,  they  Iwing  hit'liei  tlian  the  coinmis- 

; '-  f.,nrlu-i..n-  as  to  tli.'ir  contents     Stalfi.!-!   v.  King.  30  T.  237;  Baas  T. 
Miti-h-ll.  to  T 

:  II. -rnilon   v.  Ca-i:u'.«    7  fc    Dikes  v.  Miller,  11 

Assignment-  of  land  certificates  deposited  in  t!  1  land  office  for 


462  STATUTORY    RULES    OF    EVIDENCE.  [§ 

of  a  public  nature  are,  by  a  mistaken  construction  of  the  law, 
placed  in  an  office  to  which  they  did  not  properly  belong,  they  can- 
not be  authenticated  by  the  certificate  of  the  officer  having  them  in 
charge,  and  are  not  admissible  as  evidence  without  further  proof.1 
All  documents  of  a  public  nature,  which  the  party  has  a  right  to 
inspect,  and  which  there  would  be  an  inconvenience  in  removing, 
may  also  be  proved  by  an  examined  copy,  duly  made  and  sworn  to 
by  any  competent  witness.2  A  certified  copy  of  a  record  is  higher 
and  better  evidence  of  the  contents  of  the  record  than  the  state- 
ments of  witnesses.3 

Certain  books,  papers,  documents,  records,  etc.,  are  declared  by 
statute  to  be  archives  of  the  general  land  office  and  other  public 
offices  of  the  state.4  It  rests  with  the  legislature  to  determine  what 
shall  become  an  archive.5  The  statute  authorizes  the  use  of  certi- 
fied copies  of  such  papers  only  as  are  required  or  permitted  by  law 
to  be  filed  in  the  several  offices  named;  and  it  is  held  that  para- 
graph 5  of  article  C2  of  the  Revised  Statutes,  declaring  certain  pa- 
pers archives  of  the  general  land  office,  does  not  apply  to  private 
papers  deposited  in  that  office.6 

the  purpose  of  procuring  patents  to  land  on  the  certificates,  until  the  issuance 
of  the  patent  are  uot  records  of  that  office  in  the  sense  that  constitutes  the  com- 
missioner the  custodian  of  them  as  such:  and,  consequently,  the  statute  which 
makes  copies  of  the  records  of  all  public  officers,  properly  authenticated,  admis- 
sible in  evidence,  where  the  records  themselves  would  be,  is  not  applicable  to 
such  assignments  before  they  are  constituted,  and  are  recognized  as  records  by 
the  issuance  of  the  patent;  otherwise,  however,  after  the  issuance  of  the  patent, 
Short  v.  Wade,  25  T.  510;  Mason  v.  McLaughlin,  16  T.  24. 
J  York  v.  Gregg,  9  T.  85. 

2  York  v.  Gregg,  9  T.  85;  Coons  v.  Renick,  11  T.  134. 

3  Bigham  v.  Talbot,  63  T.  271. 
*R.  S.  62-70. 

•  Downing  v.  Diaz,  80  T.  433  (16  S.  W.  Rep.  49);  Tex.  Hex.  Ry.  Co.  v.  Jarvis, 
69  T.  527  (7  S.  W.  Rep.  210). 

8  Rogers  v.  Pettus,  80  T.  425  (15  S.  W.  Rep.  1093).  The  protocol  being  in  Mexico 
and  the  testimonio  being  in  the  land  office  in  Texas  as  an  archive,  the  instru- 
ments relating  to  land  and  being  a  colonial  tract,  "no  case  can  be  found  in 
which  it  has  been  held  that  a  copy  certified  from  the  land  office  was  not  admis- 
sible in  evidence."  Tex.  Mex.  Ry.  Co.  v.  Locke,  74  T.  370  (12  S.  W.  Rep.  80). 

A  transfer  of  a  land  certificate,  upon  which  was  based  the  delivery  of  a  patent 
to  the  land  by  the  commissioner  of  the  general  land  office,  when  found  in  the 
land  office  is  an  archive,  and  a  certified  copy  thereof  from  that  office  is  admis- 
sible in  evidence.  Burkett  v.  Scarborough.  59  T.  495.  The  acknowledgment  of 
proof  of  execution  of  a  deed  of  conveyance  from  a  railway  company  conveying 
land  certificates  issued  to  it  by  the  state  was  not  necessary  to  give  effect  to  a 
conveyance  of  the  same  by  the  president  of  the  company.  Such  a  conveyance 
of  certificates  already  located,  on  which  patents  had  not  been  issued,  was  prop 
erly  filed  in  the  general  land  office,  and  a  certified  copy  thereof  under  the  seal 
of  the  general  land  office  was  admissible  in  evidence.  Kimmarle  v.  Railway  Co., 
76  T.  686  (12  S.  W.  Rep.  698).  An  order  or  letter  from  the  grantee  of  a  land  cer- 
tificate, directed  to  the  clerk  of  the  county  land  board,  and  dated  February  25, 
1638,  directing  the  clerk  as  to  the  disposition  to  be  made  of  the  certificate  when 


§491.]  STATI  i"i:v    IMI.KS  ..F   F.VIPF.NCE. 

Generally,  it  is  the  fact  that  a  document  is  a  record  or  archive  of 
an  office  that  m;i  .pv  certified  to  by  tin-  h-iral  custodian  i.f 

the  record  or  archive  stand  in  the  place  of  the  original,  where  it  is 
shown  to  be  lost  or  cannot  be  produced.1  Tin-  •-t.itiit.-  n«-re  under 
consideration  governs  in  the  use  as  evidence  of  judgments  of  other 
courts,2  and  a  duly  certified  copy  is  admissible  without  the  neces- 
sity of  filing  among  the  papers  of  the  case  three  day s  before  the 
trial,  as  is  required  in  the  case  "f  instruments  which  are  permitted 
or  required  to  be  recorded  in  the  office  of  the  clerk  of  the  county 
court.* 

§491.  Copies  of  judicial  records. 

Copies  of  records  of  courts  of  the  state,  certified  to  under  the  hand 
and  seal  of  the  lawful  possessor  of  the  same,  are  admk->n»le  in  evi- 
dence in  all  cases  where  the  records  themselves  would  l>e  admissible.* 
It  is  not  necessary  for  a  party  to  obtain  transcripts  of  the  orL 
papers  and  entries  in  the  same  court:  lie  may  introduce  the  origi- 
nals.5 

A  duly  certified  copy  from  the  records  of  the  district  court,  of  a 
judgment  rendered  therein,  is  admissible  in  evidence  without   tin- 
aid  of  the  statute  making  duly  recorded  instruments  admissible,  and 
consequently  is  not  affected  by  the  proviso  requiring  such  in>ti:i 
ments  to  be  filed  among  the  papers  three  days  before  the  comnp 
ment  of  trial.6   It  is  not  a  valid  objection  to  the  copy  of  a  judgment 
offered  in  evidence  that  it  did  not  show  that  the  court  by  which  the 
judgment  was  rendered  convened,  and  that  a  judge  presided;  nor 
that  it  did  not  have  the  signature  of  the  presiding  judge;  nor  that 
it  failed  to  show  that  the  minutes  of  the  court  of  the  term  at  which 
the  judgment  was  rendered  had  been  signed  by  the  judge.     The 
document  appearing  on  its  face  to  be  the  record  of  a  court  of  the 
state,  and  bein<;  duly  certified  to  as  such  by  the  proper  officer,  de- 
fects in  the  proceedings  on  which  the  judgment   wa>  ba>ed,  and 
which  might  be  manifest  on  the  face  of  the  transcript,  whilst  t hex- 
might  be  urged  to  either   impair  or  wholly  destroy  the  validity  of 
the  judgment,  would  not  render  a  copy  inadmissible,  but  would  iv 
late  rather  to  the  weight  of  the  evidence,  and  to  the  effect,  foi 
value  of  the  purported  judgment.7     The  minutes  of  a  court  import 

issued,  is  not  an  an-liiv.-  of  the  county  dork'*  ntlii-,-.  :m<l  a 
by  such  officer  is  not  com  p. -t.-nt  .-\  i-l.-nce.     Lott  v.  Ki 
231). 

i State  v.  Cardinas.  17  T.  MO;  DikM  r,  Kill  t  -'•  T.  Sup.  2901 

'Cannon  v.  Cannon.  66  T.  68'J  .:{  S.  \V.  Rep.  36). 

»McDani.-l  v.  \\VisS,  :, 

*  R  S.  2306. 

•Wallace  v.  Beauchanfp,  l.j  T.  303. 

•McDani.  1  r.  Wdm,  58  .inmn  v.  Cannon,  66  T.  682  (3  a  W.  Kept  86V 

'  Mitchusson  v.  Wadsworth.  1  A  pp.  C.  C..  §  976. 


4-IJ4:  STATUTORY  KULES   OF   EVIDENCE.  [§  491. 

verity,  and  a  copy  of  a  judgment  appearing  in  them  carries  with  it 
the  presumption  of  all  facts  essential  to  its  validity.  It  is  not  nec- 
es>arv  that  the  signature  of  the  judge  should  be  attached  to  every 
copy  issued  by  the  clerk  of  judgments  appearing  in.  the  minutes. 
The  fact  that  the  judgment  appears  in  the  minutes  is  sufficient,  and 
that  fact  is  properly  shown  by  the  certificate  of  their  custodian. 
That  the  judgment  was  rendered  at  a  proper  time  by  a  proper  au- 
thority, and  is  valid,  is  presumed ;  that  it  is  final  is  shown  by  its 
contents.1 

The  custodian  of  judicial  records,  in  giving  copies,  only  sets  them 
out  as  they  appear,  and  so  certifies ;  and  in  an  action  for  malicious 
prosecution,  an  omission  of  the  clerk,  who  certifies  a  transcript  of 
the  proceedings  in  the  alleged  malicious  prosecution,  to  state  that 
the  affidavit  was  made  by  defendant  before  the  United  States  com- 
missioner, was  held  immaterial.2  A  certificate  of  a  district  clerk 
to  a  copy  of  a  record  of  his  office  must  be  authenticated  by  the 
seal  of  the  court.  Without  the  seal  it  cannot  be  considered  as  the 
official  act  of  the  clerk.3 

The  fact  that  certain  papers  have  not  been  filed  in  the  office  of  a 
clerk  of  a  court  cannot  be  established  in  a  suit  by  the  ex  parte  cer- 
tificate of  that  officer,  but  such  fact  must  be  proved  by  him  as  a 
witness  in  the  usual  way.4  A  partial  transcript  of  proceedings  in  a 
suit  is  admissible  in  evidence  where  the  entire  transcript  would  be 
admitted.' 

The  execution  docket  is  not  better  evidence  than  a  copy  of  the 
execution ;  but  even  if  the  execution  docket  might  show  facts  not 
shown  by  the  execution,  a  certified  copy  of  the  execution  would  be 
admissible.6  Clerks  of  courts  are  required  to  keep  an  execution 
docket  in  which  they  shall  enter  a  statement  of  all  executions  as 
they  are  issued,  specifying  the  names  of  the  parties,  the  amount  of 
the  judgment,  the  amount  due  thereon,  the  rate  of  interest  when  it 
exceeds  eight  per  cent.,  the  costs,  the  date  of  issuing  the  execution, 
to  whom  delivered,  and  the  return  of  the  officer  thereon,  with  the  date 
of  such  return.  Such  docket  entries  shall  be  taken  and  deemed  to  be 
a  record,7  and  certified  copies  thereof  are  admissible  in  evidence.8 

1  King  v.  Duke,  31  S.  W.  Rep.  335.  The  proper  evidence  of  a  decree  of  a  court 
is  a  copy  from  the  records  of  that  court  duly  authenticated.  Houston  City  Ry. 
Co.  v.  Martin,  2  U.  C.  113. 

-  Ward  v.  Sutor,  70  T.  343  (8  S.  W.  Rep.  51). 

3  McCarthy  v.  Burtis,  3  Civ.  App.  439  (22  S.  W.  Rep.  422);  Kuykendall  v.  Marx, 
1  App.  C.  C.,  g  669. 

<  Myers  v.  Jones,  4  Civ.  App.  330  (23  S.  W.  Rep.  562). 

6  Lee  v.  "Wilkins,  1  U.  C.  287;  Guilford  v.  Love,  49  T.  727;  Townsend  v.  Mun- 
ger.  9  T.  300. 

B  Mitehusson  v.  Wadsworth,  1  App.  C.  C.,  §  977. 

'•  R.  S.  zy.rt. 

a  Schleicher  v.  Markward,  61  T.  99. 


STATUTORY  RULES  OK  K\  1DKNCB.  465 

x  492.  Probate  records. 

The  county  clerk  is  required  to  keep  certain  record  books  styled, 
•••lively.  -Judge's  Probate  Docket,"  "Probate  Minutes,"  "Claim 
1  )o(  k.  t  "  ;md  "  Probate  Fee  Book."  These  books,  or  certified  cop- 
ies therefrom,  an-  admissible  in  evidence  in  any  of  the  courts  of  this 
.'  All  inventories  and  appraisements  and  lists  of  claims  which 
have  been  taken,  returned  and  approved  in  accordance  with  law  in 
the  administration  of  an  estate,  orthe  record  thereof,  or  cert i tied 
copirs  of  either  the  originals  or  the  record  thereof,  may  be  given  in 
evidence  in  any  of  the  courts  of  this  state  in  any  suit,  by  or  a<i 
the  executor  or  administrator;  but  they  are  not  conclusive  for  or 
against  him,  if  certain  things  be  shown  as  specified  in  the  statute.-' 

Certified  copies  of  probate  records,  including  inventories,  etc.,  are 
admissible  under  the  statute  "where  the  records  themselves  would 
in-  admissible; "  *  and  when  the  original  document  is  lost,  the  record 
<>r  a  copy  therefrom  would  be  the  next  best  evidence  of  the  contents 
of  the  original,  to  the  exclusion  of  all  other  evidence  of  a  weaker 
and  less  certain  character.  Parol  evidence  should  not  be  allowed  to 
contradict  such  copy.4  A  transcript  of  the  records  of  a  probate 
court,  if  relevant,  cannot  be  excluded  because  there  may  be  other 

lords  pertaining  to  the  administration  of  the  estate.5 

?'  493.  Copies  of  wills,  or  of  the  probate  or  record  thereof. 

All  original  wills,  together  with  the  probate  thereof,  must  be  de- 
ed in  the  office  of  the  clerk  of  the  county  court  of  the  county 
wherein  the  same  shall  have  been  probated,  there  to  remain,  except 
during  such  time  as  they  may  be  removed  to  some  other  court  by 
proper  process,  for  inspection.  Every  such  will,  together  with  the 
probate  thereof,  must  be  recorded  by  the  clerk  of  the  county  court 
in  a  book  to  be  kept  for  that  purpose,  and  certified  copies  of  such 
will  and  the  probate  of  the  same,  or  of  the  record  thereof,  may  be 
recorded  in  other  counties,  and  may  be  used  in  evidence,  as  the 
original  might  be.6 

A  will  cannot  be  used  as  evidence  of  title,  or  of  a  link  in  a  chain 

of  title,  in  view  of  the  provisions  of  the  statute,  until  after  it  is  pro- 

batrd  in  the  manner  and  form  prescribed  by  the  law.7    A  will  is 

.dmissible  in  evidence  as  such  until  shown  to  have  been  duly 

'  R  a  1850. 

-  K.  S.  1981;  Campbell  v.  Cox,  1  App.  C.  C.,  §  526;  Ross  v.  Harbert,  1  App.  C.  C, 

'19. 

'R.  a  2306. 
M\, Ilins  v.  Ball,  82  T.  259  (17  a  W.  Rep.  614). 

iilfonl  v.  Love,  49  T.  715.  The  recitals  in  the  inventory  made  by  an  ad- 
ministrator are  not  evidence  on  an  issue  as  to  whether  property  was  a  home- 
stead. Blessing  v.  Edmonson,  49  T.  333. 

"R.  a  5;: 

"Ochoa  v.  Miller,  59  T.  460. 
30 


466  STATDTOEY  KULES  OF  EVIDENCE.  [ 

probated.  Presumption  of  probate  of  an  ancient  will  will  not  ob- 
tain until  it  be  shown  that  the  records  of  the  proper  court  for  its 
probate  are  lost  or  destroyed.1  When  a  certified  copy  of  a  duly 
recorded  will  is  introduced  in  evidence,  there  is  no  necessity  to  ac- 
count for  the  original;  the  certified  copy  is  of  equal  dignity,  as  evi- 
dence, with  the  original.  The  requirements  of  the  statute  in  refer- 
ence to  instruments  permitted  or  required  by  law  to  be  recorded  do 
not  apply  to  such  a  case ;  that  is,  the  instrument  need  not  be  filed 
among  the  papers  of  the  case,  and  notice  to  the  opposite  party  is 
not  required.2 

§  494.  Copies  and  certificates  from  certain  state  offices. 

It  is  the  duty  of  the  secretary  of  state,  attorney-general,  commis- 
sioner of  the  general  land  office,  comptroller,  treasurer,  adjutant- 
general  and  commissioner  of  agriculture,  insurance,  statistics  and 
history,  to  furnish  any  person  who  may  apply  for  the  same  with  a. 
copy  of  any  paper,  document  or  record  in  their  respective  offices, 
and  also  to  give  certificates,  attested  by  the  seals  of  their  respective 
offices,  certifying  to  any  fact  or  facts  contained  in  the  papers,  docu- 
ments or  records  of  their  offices,  to  any  person  applying  for  the  same, 
and  the  same  are  admissible  in  evidence  in  all  cases  in  which  the 
originals  would  be  evidence.3  This  statute  contemplates  only  such 
papers  as  are  required  or  permitted  by  law  to  be  filed  in  the  offices 
named.4  The  provision  for  certificates  as  to  the  existence  of  facts 
contained  in  any  papers,  etc.,  should  not  be  construed  to  extend 
beyond  the  plain  import  of  its  language.  It  does  not  authorize  a 
certificate  as  to  what  has  been  done  in  the  land  office ;  but  when  a 
copy  of  the  record,  document  or  paper  is  not  given,  the  certificate 
should  be  confined  to  a  statement  of  the  fact  or  facts  contained 
therein.5 

*  La  Gow  v.  Glover,  77  T.  448  (14  S.  W.  Rep.  441). 
Zffickman  v.  Gillum,  66  T.  314  (1  S.  W.  Rep.  339). 
»R.S.  2308. 

4  Rogers  v.  Pettus,  80  T.  425  (15  S.  W.  Rep.  1093). 

5  Buford  v.  Bostick,  58  T.  63.    A  certificate  of  the  commissioner  of  the  general 
land  office  to  the  effect  that  a  land  certificate  issued  to  Thomas  Toby  had  never 
been  sold  by  Toby  as  agent  for  the  republic,  and  that  it  was  then  and  had 
theretofore  been  regarded  as  void  and  patent  refused  upon  a  location  made  under 
it,  is  not  admissible  as  evidence  under  the  statute,  as  it  states  conclusions  and 
not  facts  of  record.    Fisher  v.  Ullman,  3  Civ.  App.  322  (22  S.  W.  Rep.  523).    It 
•was  error  to  admit  in  evidence  a  certificate  of  the  commissioner  of  the  general 
land  office  stating  that  he  had  made  search  in  the  general  land  office  for  the 
field-notes  of  certain  surveys,  and  had  been  unable  to  find  them,  and  that  they 
•were  not  in  the  files  of  said  office,  "and  were  never  filed  in  the  land  office  at 
Austin."    Bacon  v.  State,  2  Civ.  App.  692  (21  S.  W.  Rep.  149).    A  certificate  as  ta 
the  effect  of  ancient  records  is  incompetent  as  evidence.    An  examined  copy 
of  such  part  of  the  records  as  may  be  relevant  to  the  issue  should  be  produced. 
Howard  v.  Russell,  75  T.  171  (12  S.  W.  Rep.  525).    Certified  copies  from  the  gen- 


§  494.]  STATUTORY  BULKS  OF  EVIDENCE. 

The  records  of  patents  in  the  general  land  office  stand  in  the  same 
position,  and  have  the  same  dignity  and  effect,  as  the  original  pat- 
ents delivered  to  the  grantees.  A  certified  copy  of  a  patent  from 
those  records  is  primary  evidence  of  its  issuance.1  A  certified  copy 
from  the  general  land  office  of  a  deed  properly  filed  in  that  depart- 
ment, and  which  under  the  statute  had  the  force  and  effect  of  an 
original  in  that  office,  is  admissible  in  evidence,  after  evidence  of 
the  loss  of  the  original.2 

The  facts  certified  to  by  the  commissioner  of  the  general  land 
office  as  appearing  in  the  records  of  that  office  are  admissible  in 
evidence  only  when  the  original  document  would  be  admissible. 
There  appears  to  be  no  intention  of  extending  the  rules  of  evidence, 
so  as  to  make  facts  admissible  which  were  not  before  admissible 
under  the  rules  of  the  common  law.  The  statute  simply  provides 
the  means  of  authenticating  copies  of  documents  in  all  cas« 
which,  for  any  reason,  it  is  not  proper  or  convenient  to  take  the 
original  out  of  the  office;  also  for  authenticating  copies  of  any  in- 
dorsement in  any  book  or  file  upon  a  paj>er,  or  any  like  fact,  per- 
taining to  a  document  or  record  in  such  office.1 

Certified  copies  of  maps  from  the  general  land  office  are  admis- 
sible in  evidence.*  On  an  issue  of  forgery  of  what  purported  to 
be  the  protocol  of  a  grant,  it  was  not  error  to  admit  in  evidence 
certified  copies  of  sketches,  maps  and  surveys  nearly  contempora- 
neous, made  by  those  who  participated  in  procuring  the  grant,  and 
having  reference  to  it,  to  be  considered  with  other  facts  in  evidence 
relating  to  the  issue  of  forgery  of  the  grant.*  A  map  of  land 
made  by  the  county  surveyor  from  records  not  in  issue  betv 

eral  land  office,  niade  by  the  commissioner  and  comptroller,  in  which  they 
made  as  near  as  they  could  fac-rimile  copies  of  a  signature  which  they  could 
not  read,  may  be  used  in  evidence.  McCauiant  v.  Roberts,  25  S.  W.  Rep.  731. 

v.  Mumme.  66  T.  268  (17  a  W.  Rep.  407),  citing  McGarrahan  v.  Mining 
Co.,  96  U.  S.  319.  While  a  patent  may.  like  other  evidences  of  title,  be  recorded 
in  th-  county  where  the  land  lies,  that  fact  does  not  affect  its  admissibility  in 
evidence,  and  either  it  or  a  duly  certified  copy  thereof  from  the  general  land 
office  may  be  read  in  evidence  without  registration  in  the  county,  and  without 
tin-  notice  prescribed  in  respect  to  recorded  instruments.  Jones  v.  Phillips,  59 
T.  609. 

*  Hines  v.  Thorn,  57  T.  98. 

'Gaither  v.  Hanrick,  69  T.  92  (6  S.  W.  Rep.  619).    It  was  held  that  a  j- 
memorandum  indorsed  on  a  paper  writing  attached  to  what  purported  to  be  an 
original  grant  of  land  from  the  government,  and  which  was  found  in  the  gen- 
eral hind  office,  but  the  genuineness  of  which  grant  was  attacked,  which  i 
randum.  among  other  things,  declared  that  the  grant  was  genuine,  was  not 
admissible  in  evidence  to  show  the  validity  of  the  title.    A  copy  of  such  memo- 
randum, certified  to  by  the  commissioner  of  the  general  land  office,  is  not  ad- 
missible as  the  copy  of  8  document    And  see  Hanrick  v.  Cavanaugh,  60  T.  1. 

« Houston  v.  Blythe,  60  T.  506. 

»  Hanrick  v.  Dodd,  62  T.  75;  Hanrick  v.  Cavanaugh,  60  T.  L 


468  STATUTORY   ETJLES    OF   EVIDENCE.  [§  495. 

the  parties  was  admissible  to  show  the  location  of  the  land  as  to 
surrounding  tracts,  etc.  The  fact  that  the  map  did  not  contain 
two  small  tracts,  the  deeds  to  which  were  not  recorded,  was  not 
sufficient  cause  to  reject  it,  unless  the  opposite  party  showed  that 
he  was  injured  by  the  defect.1  The  commissioner  of  the  general 
land  office  may  give  certified  sketches  from  the  maps  in  his  office, 
and  in  many  cases  they  are  admissible  in  evidence.2  Sketches 
made  from  field-notes  on  file  in  the  land  office,  with  a  view  to  show 
that  certain  tracts  are  situated  as  they  are  represented  thereon, 
are  not  admissible.  While  map  sketches  from  the  maps  in  the  land 
office  certified  to  be  correct  are  competent  evidence,  the  certificates 
of  surveyors  appended  thereto  are  incompetent  and  properly  ex- 
cluded.3 

§  495.  Certain  transfers  or  deeds  not  to  be  withdrawn  from  land 
office. 

No  transfer  or  deed  that  may  be  a  link  in  any  chain  of  title  to 
any  certificate  on  file  in  the  general  land  office  shall  be  withdrawn 
by  any  one ;  it  is  the  duty  of  the  commissioner,  on  demand,  to  de- 
liver to  the  interested  party  certified  copies,  which  will  have  the 
same  force  and  effect  as  the  originals.  If,  in  any  suit,  there  is  any 
question  as  to  the  genuineness  of  any  such  original,  the  commis- 
sioner is  required  to  deliver  the  same  to  the  party  to  -whom  the  same 
may  be  ordered  by  the  court  where  such  suit  is  pending;  and  in 
such  case,  it  is  the  duty  of  the  commissioner  to  retain  in  his  office  a 
duly  certified  copy,  which,  in. case  of  the  loss  of  the  original,  will 
have  the  same  force  and  effect  as  the  original.4  Under  this  article 
certified  copies  of  certificates  from  the  commissioner  of  the  general 
land  office,  under  which  land  has  been  located,  are  admissible  as 
original  evidence  when  the  originals  are  on  file  as  archives.5  All 
transfers  of  land  certificates  on  file  in  the  general  land  office  are 
archives  of  that  office,  and  certified  copies  thereof  are  admissible  in 
evidence  as  the  originals  would  be.6 

1  Haney  v.  Clark,  65  T.  93. 

2  Tex.  &  Pac.  Ry.  Co.  v.  Thompson,  65  T.  186. 

3Kuechler  v.  Wilson,  82  T.  638  (18  S.  W.  Rep.  317).  The  certificate  of  the 
comptroller  from  the  records  of  his  office  is  admissible  in  evidence  where  the 
area  of  adjoining  lots  may  become  material  to  aid  in  determining  the  division 
line  between  them.  Edwards  v.  Smith,  71  T.  156  (9  S.  W.  Rep.  77).  The  comp- 
troller's certificates  were  admissible  to  show  acts  of  ownership  and  claim  to 
the  land  by  the  person  paying  the  taxes.  Also  to  contradict  testimony  by  an- 
other who  had  testified  to  payment  upon  the  same  property,  the  records  show- 
ing otherwise.  McCamant  v.  Roberts,  80  T.  316  (15  S.  W.  Rep.  580,  1054). 

<R.S.  4053. 

»Halbert  v.  Carroll,  25  S.  W.  Rep.  1102. 

6  Parker  v.  Spencer,  61  T.  155;  Holmes  v.  Anderson,  59  T.  481.  See  Talbert  v. 
Dull,  70  T.  675  (8  S.  W.  Rep.  530);  Hill  v.  Smith,  6  'Civ.  App.  312  (25  S.  W.  Rep. 
1079);  Thomson  v.  Hines,  59  T.  525. 


§§  496,  497.]       STATUTORY  RULES  OF  EVIDENCE.  4»i!' 

The  archives  in  the  land  office  showing  the  proceedings  of  the 
board  of  land  commissioners  are  competent  to  sho\v  to  whom  and 
upon  what  proof  headright  certificates  were  granted.1 

An  affidavit  by  defendant,  made  for  the  purpose  of  withdrawing 
the  original  of  a  deed,  a  link  in  the  chain  of  plaintiffs  title,  from 
the.  hind  office,  alleging  its  alteration,  etc.,  does  not  operate  further 
than  as  a  means  of  obtaining  the  original  deed.  It  does  not  operate 
as  an  affidavit  of  forgery  attacking  the  deed  when  offered  l>v  the 
plaintiff.  It  was  error  to  exclude  the  original  deed  procured  from 
the  land  office  upon  affidavit  of  the  defendant  that  its  production 
was  necessary,  etc.,  when  offered  by  the  plaintiff,  there  being  no 
other  attack  upon  the  original  deed.2 

§  406.  Notarial  acts  and  certified  copies. 

All  declarations  and  protests  made  and  acknowledgments  taken 
by  notaries  public,  and  certified  copies  of  their  records  and  of 
papers,  are  received  as  evidence  of  the  facts  therein  stated  in  all  the 
courts  of  this  state.' 

§  497.  Judicial  records  of  other  states. 

The  records  and  judicial  proceedings  of  the  courts  of  any  state 
or  territory,  or  of  any  country  subject  to  the  jurisdiction  of  the 
United  States,  shall  be  proved  or  admitted  in  any  other  court  within 
the  United  States,  by  the  attestation  of  the  clerk,  and  the  seal  of 
the  court  annexed,  if  there  be  a  seal,  together  with  a  certifies 
the  judge,  chief  justice  or  presiding  magistrate  that  the  said  attesta- 
tion is  in  due  form;  and  the  said  records  and  judicial  proceedings, 
so  authenticated,  shall  have  such  faith  and  credit  given  to  them  in 
every  court  within  the  United  States  as  they  have  by  law  or  usage 
in  the  courts  of  the  state  from  which  they  are  taken.4 

i  McNeil  v.  O'Connor,  79  T.  227  (14  S.  W.  Rep.  1058).  Though  a  patent  to  land 
may  not  disclose  the  number  of  the  certificate  by  virtue  of  which  it  issued,  that 
fact  may  be  shown  by  certificate  of  the  commissioner  of  the  general  land  office. 
Talbert  v.  Dull,  70  T.  675  (8  S.  W.  Rep.  530).  The  record  of  the  patent  in  the  land 
office  is  a  record  from  which  copies  are  subsequently  given.  These  copies  are 
e\  i.lence  of  the  original  grant  by  the  state,  Stevens  v.  Geiser,  71  T.  140  (8  S.  W. 
Rep.  610). 

.Ming  v.  Atkinson,  79  T.  162  (14  S.  W.  Rep.  1054). 

»R  S.  316,  230»;  Mun/.-sheimer  v.  Allen.  ::  Aj.p.  C.  C.,  §55.     A  copy  of  a  ] 
of  attorney  properly  authenticated  is  not  a<iini>>U>l.-  i:  •   \vithout  show- 

ing the  loss  of  the  original  or  accounting  for  its  non-pn*iu«-ti..n.     Hammond  v. 
M-y,  2  U.  < 

<  R.  a  U.  S.,  £  90.1).  The  certificate  of  tli»-  judge,  in  th»-  authentication  of  the 
judgment  of  another  state,  nui-t  be  annexed  to  tin  ••x-mplitication  «.f  the  rec- 
or.i.  Norwood  v.  Col>l>.  ','0  T.  588.  Where  then-  was  an  ap|>arent  -li-fect  in  the 
certificate  of  the  cl.-rk  in  not  showing  that  h.-  «a-  .-1,-rk  ..f  th-  court  in  which 
the  judgment  was  render--.!,  it  wa-  I>-1  :  '.  the  judge  having 

fied  that  the  attestation  was  in  due  form  of  law.    Harper  \    Nic!i<-I.  i:5T.  151.    The 
judgment  or  decree  of  a  court  of  another  state,  having  jun-  iicti'.n  of  the  par- 


470  .STATUTORY    RULES   OF   EVIDENCE.  [§  498. 

§  498.  Public  records  of  other  states,  etc.,  how  proved. 

All  records  and  exemplifications  of  books,  which  may  be  kept  in 
any  public  office  of  any  state  or  territory,  or  of  any  country  subject 
to  the  jurisdiction  of  the  United  States,  not  appertaining  to  a  court, 
shall  be  proved  or  admitted  in  any  court  or  office  in  any  other  state 
or  territory,  or  in  any  such  country,  by  the  attestation  of  the  keeper 
of  such  records  or  books,  and  the  seal  of  his  office  annexed,  if  there 
be  a  seal,  together  with  a  certificate  of  the  presiding  justice  of  the 
court  of  the  county,  parish  or  district  in  which  such  office  may  be 
kept,  or  of  the  governor  or  secretary  of  state,  the  chancellor  or 
keeper  of  the  great  seal  of  the  state,  or  territory,  or  country,  that 
the  said  attestation  is  in  due  form  and  by  the  proper  officers.  If 

ties  and  of  the  subject-matter,  is  conclusive  as  to  the  rights  thereby  adjudi- 
cated. Where  suit  is  brought  on  a  judgment  of  another  state,  allegations  and 
evidence  which  merely  attack  the  right  of  the  plaintiff  to  recover  in  the  orig- 
inal action,  without  more,  do  not  conduce  in  any  degree  to  sustain  a  general 
charge  that  the  judgment  was  obtained  by  fraud.  Norwood  v.  Cobb,  20  T.  588. 
But  the  defendant  may  impeach  the  judgment  by  averment  and  proof  that  he 
was  not  served  with  process,  and  did  not  appear  in  person  or  by  attorney,  al- 
though the  record  contain  the  return  of  process  executed,  and  the  judgment 
recite  that  he  was  served  or  appeared.  Norwood  v.  Cobb,  15  T.  500;  S.  C.,  24  T. 
551.  It  has  been  held  that  judgments  of  justices  of  the  peace  are  not  within 
the  provisions  of  the  act  of  congress.  1  Greenl.  Ev.,  §  505.  As  to  the  faith  to  be 
given  to  judgments  of  a  sister  state,  rendered  upon  constructive  service,  see 
Thouvenin  v.  Rodrigues,  24  T.  468.  It  is  held  that  such  judgments  are  conclu- 
sive between  the  parties  as  to  the  property  within  the  jurisdiction  of  the  state, 
but  void  as  judgments  in  personam,  unless  founded  upon  personal  service  or 
appearance.  Lincoln  v.  Tower,  2  McLean,  473;  Westervelt  v.  Lewis,  id.  511; 
Steal  v.  Smith,  7  Watts  &  S.  447;  Miller  v.  Miller,  1  Bail.  242;  Chamberlain  v. 
Faris,  1  Mo.  517;  Wilson  v.  Niles,  2  Hall,  358;  Watkins  v.  Holman,  16  Peters,  25; 
Barrow  v.  Wirt.  23  Pick.  270;  Whiting  v.  Johnson,  5  Dana,  390. 

A  certificate,  duly  authenticated,  of  an  appointment  as  administrator  in  an- 
other state,  if  good  in  form  here  will  be  presumed  to  be  so  where  made,  in  absence 
of  evidence  showing  otherwise.  Abercrombie  v.  Stillman,  77  T.  589  (14  S.  W. 
Rep.  196).  For  grounds  making  a  certified  copy  of  an  affidavit  on  which  a  pros- 
ecution was  based  admissible  in  a  suit  for  malicious  prosecution,  see  Suter  v. 
Wood,  76  T.  403  (13  S.  W.  Rep.  321). 

A  transcript  of  a  judgment  which  recites  that  it  was  rendered  on  a  trial  be- 
fore a  named  justice  at  a  circuit  court  in  the  city  of  New  York,  in  January, 
1873,  attested  in  January,  1874,  by  a  different  person  styling  himself  "  justice  of 
the  supreme  court  of  the  state  of  New  York,"  does  not  appear  to  be  attested  by 
the  judge  of  the  court  in  which  the  judgment  was  rendered,  and  is  not  properly 
certified  under  the  act  of  congress.  If  it  appeared  that  the  circuit  and  supreme 
courts  were  the  same,  the  inference  from  the  facts  is  that  there  was  more  than 
one  justice  of  that  court,  and  the  certificate  is  defective  in  that  it  does  not  pur- 
port to  be  that  of  the  chief  justice  or  presiding  magistrate.  Randall  v.  Burtis, 
57  T.  362. 

In  the  absence  of  an  averment  in  the  petition  of  a  law,  custom  or  procedure 
in  the  courts  of  the  state  where  the  judgment  was  rendered  requiring  a  different 
construction  to  be  given  to  it,  a  foreign  judgment  must  be  interpreted  and  held 
to  have  the  same  legal  effect  as  if  it  had  been  rendered  by  our  own  courts.  A 
judgment  for  the  foreclosure  of  a  mortgage  will  not  be  presumed  to  extend  any 
further  in  the  absence  of  averment  and  proof.  Porcheler  v.  Bronson,  50  T.  555. 


'•!.]  STATUTORY    RULES   OF   EVIDENCE.  471 

the  certificate  is  given  by  the  presiding  justice  of  a  court,  it  must 
"be  further  authenticated  by  the  clerk  or  prothonotary  of  tin- 
court,  who  must  certify,  under  his  hand  and  the  seal  of  his  <> 
that  the  said  presiding  justice  is  duly  commissioned  and  qualified; 
or,  if  given  by  the  governor,  secretary,  chancellor  or  keeper  of  the- 
great  seal,  it  must  be  under  the  great  seal  of  the  >•  i  itory  or 

country  in  which  it  is  made.     The  records  and  exemplification 
authenticated,  are  entitled  to  such  faith  and  credit  in  every  court 
and  office  within  the  United  States  as  they  have  by  law  or  usage 
in  the  courts  or  offices  of  the  state,  territory  or  country  from  which 
they  are  taken.1 

?  499.  Comptroller's  transcript  in  suits  against  officers. 

In  suits  by  the  state  against  any  officer  or  agent  thereof,  on  ac- 
count of  any  delinquency  or  failure  to  pay  to  the  state  any  money, 
a  transcript  from  the  papers,  books,  records  and  proceedings  of  the 
office  of  comptroller  of  public  accounts,  purporting  to  contain  a 
true  statement  of  accounts  between  the  state  and  such  officer  or 
-.  authenticated  under  the  seal  of  said  office,  is  admitted  as 
j'i •/'//"/  facie  evidence,  and  the  court  trying  the  cause  may  there- 
upon render  judgment  accordingly;  and  all  copies  of  bonds,  con- 
tracts or  other  papers  relating  to  or  connected  with  any  account 
between  the  state  and  an  individual,  sued  as  aforesaid,  when  crrti- 
tied  by  the  comptroller  of  public  accounts  to  be  true  copies  of  the 
originals  on  file  in  said  office,  and  authenticated  under  the  seal  of 
said  office,  may  be  annexed  to  such  transcript,  and  will  be  entitled 
to  the  same  degree  of  credit  that  would  be  due  to  the  original 
•i-s  if  produced  and  proved  in  court;  but  when  such  suit  is 
brought  upon  a  bond  or  other  written  instrument,  and  the  defend- 
ant shall  by  plea  under  oath  deny  the  execution  of  such  instrument, 
the  court  must  require  the  production  and  proof  thereof.2 

?  500.  Certified  copies  from  heads  of  departments. 

Certified  copies  under  the  hands  and  official  seals  of  the  beads  of 
departments,  of  all  notes,  bonds,  mortgages,  bills,  accounts  or  other 
documents  properly  on  file  in  any  of  the  departments  of  this  state, 
are  received  in  evidence  on  an  equal  footing  with  the  origin  . 
all  suits  in  this  state,  where  the  originals  of  such  notes,  etc.,  would 
be  evidence.3 

£501.  Taxes,  assessment  and  payment  of,  how  proved. 

Whenever  in  an)'  cause  it  may  be  material  to  prove  the  assess- 
m<-nt  of  any  property  for  taxes,  or  the  payment  of  any  taxes,  the 
certificate  of  the  comptroller  of  this  state  of  such  assessment  from 

»  R  a  u.  a,  §  we. 

-'  R  S.  2310. 
5RS.2315. 


472  STATUTORY    RULES    OF    EVIDENCE.  [§§  502,  503. 

the  rolls  deposited  in  his  office,  or  that  the  payment  of  such  taxes 
is  shown  by  the  records  of  his  office,  is  admissible  to  prove  the  same.1 

§  602.  Certified  copies  of  chattel  mortgages. 

When  a  chattel  mortgage,  deed  of  trust,  or  other  instrument  of 
writing  intended  to  operate  as  a  mortgage  of  or  a  lien  upon  per- 
sonal property,  or  a  copy  thereof,  has  been  filed  in  the  office  of  the 
county  clerk  according  to  law,  a  certified  copy  of  such  instrument,, 
certified  to  under  the  hand  and  seal  of  the  clerk  of  the  county  court 
in  whose  office  it  was  filed,  is  admitted  in  evidence  in  like  manner 
as  the  original  might  be,  unless  the  execution  of  the  original  has 
been  denied  under  oath  by  the  party  sought  to  be  charged  thereby. 
The  party  desiring  to  use  such  instrument  must  file  it  in  the  papers 
of  the  cause  before  announcing  ready  for  trial  and  not  afterwards; 
and  such  certified  copy  will  in  all  cases  be  received  as  evidence  of 
filing  and  entry  thereof  in  chattel  mortgage  record  according  to 
the  indorsement  of  the  clerk  thereon.2 

§  503.  Proof  of  appointment  of  executor,  etc. 

Whenever  it  may  be  necessary  to  make  proof  of  the  appointment 
and  qualification  of  an  executor,  administrator  or  guardian,  the  let- 
ters issued  to  them  in  the  manner  provided  by  law,  or  a  certificate 
of  the  proper  clerk  under  his  official  seal  that  such  letters  have  been 
issued,  will  be  sufficient  evidence  of  the  appointment  and  qualifica- 
tion of  such  executor,  administrator  or  guardian.3  Letters  of  ad- 
ministration are  not  the  only  mode  of  proving  the  authority  of  an 
administrator.  The  proof  may  be  made  by  the  records  of  the  court, 
that  made  the  appointment,  or  by  certified  copies  thereof;  such 
evidence  is  not  secondary.4  An  administrator  who  is  plaintiff  in  a 
suit  cannot  be  required  to  prove  his  authority  to  prosecute  the 
cause  under  a  general  denial  or  a  plea  of  not  guilty.5 

1 R  S.  2316.  Parol  testimony  is  competent  to  prove  payment  of  taxes.  It  is 
not  necessary  to  produce  the  tax  receipts.  McDonough  v.  Jefferson  Co.,  79  T. 
535  (15  S.  W.  Rep.  490);  Jacks  v.  Dillon,  6  Civ.  App.  192  (25  S.  W.  Rep.  645). 

2 Acts  1891,  p.  38;  R  S.  3330.  Article  3  of  the  act  of  1879,  of  which  the 
above  article  is  an  amendment,  provided  that  the  certified  copy  should  be  re- 
ceived as  evidence  of  the  fact  that  the  instrument  or  copy  was  received  and 
filed  according  to  the  indorsement  of  the  clerk  thereon,  but  of  no  other  fact. 
See  Chator  v.  Brunswick  Co.,  71  T.  588  (10  S.  W.  Rep.  250);  Boydston  v.  Mor- 
ris. 71  T.  697  (10  S.  W.  Rep.  331);  Betterton  v.  Echols,  85  T.  212  (20  S.  W.  Rep.  63). 
While  that  act  was  in  force,  a  chattel  mortgage,  registered  under  it,  was  not 
admissible  in  evidence  unless  its  execution  was  proved  as  at  common  law.  Bet- 
terton v.  Echols,  85  T.  212  (20  S.  W.  Rep.  63);  Edwards  v.  Osman,  84  T.  656  (19 
&  W.  Rep.  868);  Baxter  v.  Howell,  7  Civ.  App.,  198  (26  S.  W.  Rep.  453). 

3  R  S.  1907,  2321. 

4Outler  v.  Elam,  1  App.  C.  C.,  §  1003,  citing  Abbott's  Trial  Ev.  56;  1  Greenl.. 
Ev.  519;  Farnsworth  v.  Briggs,  6  N.  H.  562. 

•  Dignowitty  v.  Coleman,  77  T.  98  (13  S.  W.  Rep.  857);  Cheatham  v.  Riddle,  13- 
T.  112. 


§§  504,  505.]       STATUTORY  RULES  OF  EVIDENCE.  47$ 

8  504.  Partition  proceedings  and  decrees  for  recovery  of  title. 

Every  partition  of  any  tract  of  land  or  lot,  made  un-ler  any  order 
or  decree  of  any  court,  and  every  judgment  or  decree  by  which  the 
title  of  any  tract  of  land  or  lot  is  recovered,  must  be  duly  recorded 
in  the  clerk's  office  of  the  county  court  in  which  such  tract  of  land 
or  lot  or  part  thereof  may  lie,  and  until  so  ivon-di-d  the  partition, 
judgment  or  decree  will  not  be  received  in  evidence  in  support  of 
any  right  claimed  by  virtue  thereof.1  Such  proceedings  or  decree 
arc  not  required  to  be  recorded  in  full,  but  a  brief  statement  by  the 
clerk,  under  his  hand  and  seal,  setting  forth  the  case  in  which  the 
partition  or  decree  was  made,  the  date  thereof,  the  names  of 
the  parties  in  the  suit  or  partition,  the  particular  land  or  lot  lying 
in  the  county  in  which  the  record  is  made  and  the  name  of  the 
party  to  whom  the  same  is  decreed,  is  sufficient."  It  will  be  n<> 
that  no  provision  is  made  for  admitting  a  copy  of  the  record  in  evi- 
dence.3 It  is  not  necessary  that  a  decree  of  partition  be  recorded 
to  be  competent  evidence,  save  as  against  one  claiming  to  be  a  bona 
fide  purchaser  without  notice.4 

?'  505.  Recorded  instruments  admissible. 

Every  instrument  of  writing  which  is  permitted  or  required  l>y 
law  to  be  recorded  in  the  office  of  the  clerk  of  the  county  court,  and 
which  has  been  or  may  be  so  recorded  after  being  proven  or  ac- 
knowledged in  the  manner  provided  by  the  laws  in  force  at  the 
time  of  its  registration,  is  admitted  as  evidence  without  the  n 
sity  of  proving  its  execution;5  but  the  party  who  wishes  to  give  it 

•  R  a  4649. 

»Ra4C50. 

»  Houston  City  R  Co.  v.  Martin,  2  U.  C.  Hi 

«  Henderson  v.  Lindley,  75  T.  185  (12  S.  W.  Rep.  979).  The  above  statute  wa» 
only  intended  for  the  protection  of  bona  fide  purchasers  and  creditor*,  being  a 
regulation  affecting  conveyances,  and  has  no  application  when  the  judgment  is 
otTt-n-d  in  evidence,  without  being  recorded,  in  a  second  trial  between  parties  to 
the  former  suit  in  which  it  was  rendered.  Russell  v.  Farquhar,  55  T.  355.  The 
evident  object  of  the  statute  is  not  to  prohibit  the  introduction  in  evidence  of  a 
decree  of  the  kind  mentioned,  under  all  circumstances,  until  recorded,  but  only 
to  apply  the  system  of  registration  to  such  a  judgment  or  decree,  and  to  deny  to 
a  party  the  right  to  so  introduce  it  in  evidence  unless  he  shows  its  registration, 
or  facts  which  make  it,  as  between  the  parties  and  under  the  general  provision* 
of  thf>  registration  laws,  admissible  without  registration.  The  statute  wa*  : 
designed  to  exclude  such  evidence  where  the  parties  had  expressly  agreed  to  its 
admission,  nor  where  it  had  been  by  both  parties  substantially  admit  t«-«i  in  tlirir 
p'ea.lings.  Thornton  v.  Murray.  50  T.  101.  No  portion  of  the  transcript  of  the 
proceedings  of  an  administration  under  which  land  was  soU,  on  account  of  th«- 
imprartirability  of  partitioning  without  sale,  need  be  recorded  in  tin-  county 
where  the  land  is  situate,  in  order  to  pvrniit  th«-  intro<lii<-tion  of  the  trui.- 
in  evidence  in  a  suit  involving  the  title  to  the  land.  Lewis  v.  Ames,  44  T.  819. 

•Where  an  instrument  is  not  provi-.l  in  tin-  modi-  n-ijuirrd  for  its  admission 
to  record,  it  acquires  no  authenticity  from  having  been  recorded.  Craddock  v. 
M,-irill,  2  T.  494;  Lambert  v.  v.  T.  359;  Holliday  v.  Cromwell.  26  T.  188; 


474  STATUTORY   EULES   OF   EVIDENCE,  [§  505. 

in  evidence  must  file  it  among  the  papers  of  the  suit  in  which  he 
proposes  to  use  it  at  least  three  days  before  the  commencement  of 
the  trial,  and  give  notice  of  such  filing  to  the  opposite  party  or  his 
attorney  of  record.  If  the  opposite  party,  or  some  other  person 
for  him,  shall,  within  three  days  before  the  trial,  file  an  affidavit 
stating  that  he  believes  such  instrument  of  writing  to  be  forged, 
then  its  execution  must  be  proved.1  The  original  document  may  be 
introduced  and  proved  according  to  the  rules  of  evidence  at  com- 
mon law ;  and  when  this  is  done,  it  is  not  necessary  that  it  should 
be  previously  filed.2 

"Whilst  the  primary  and  leading  object  of  registration  under  the 
laws  of  this  state  is  notice,  yet  the  purpose  of  the  statute  under  con- 
sideration is  not  to  give  notice,  but  to  establish  a  rule  of  evidence ; 
and,  if  an  instrument  required  or  permitted  by  law  to  be  recorded 
has  been  acknowledged  or  proved  for  record,  and  recorded  as  the 
law  directs,  the  original,  on  compliance  with  the  other  provisions 
•of  the  law,  will  stand  as  though  its  execution  had  been  proved  as  at 
common  law,  unless  an  affidavit  of  forgery  be  filed;  and  so,  also, 
will  a  certified  copy  thereof  if  the  inability  of  the  party  offering  it 
to  produce  the  original  be  shown.  Under  the  statute  the  valid 
registration  of  a  deed  in  one  county  establishes prima  facie  its  exe- 
cution for  all  the  purposes  for  which  the  deed  may  be  used,  and  the 
place  where  it  is  to  be  used  in  evidence  cannot  affect  the  question. 

Coffey  v.  Hendricks,  66  T.  676  (2  S.  W.  Rep.  47);  Poole  v.  Jackson,  60  T.  380. 
Where  a  deed  has  been  properly  recorded  in  the  county  where  the  land  lies,  the 
registry  laws  do  not  require  that  it  should  be  again  recorded  in  a  new  or  other 
•county  into  which  the  territory  may  be  erected  or  to  which  it  may  be  attached. 
McKissick  v.  Colquhoun,  18  T.  148;  Frizzell  v.  Johnson,  30  T.  31;  Herrington  v. 
Williams,  31  T.  448.  But  provision  is  made  for  obtaining  and  preserving  proper 
records  where  new  counties  are  created,  or  where  an  unorganized  county  is  or- 
ganized or  is  detached  from  one  county  and  attached  to  another.  R.  S.  4641, 
4668. 

IRS.  2312;  Fulton  v.  Boyne,  18  T.  50.  The  failure  to  file  an  affidavit  im- 
peaching a  deed  gives  to  the  deed  the  same  force,  and  no  more,  as  if  its  execu- 
tion had  been  testified  to  by  the  subscribing  witnesses;  it  does  not  estop  or 
preclude  the  opposing  party  from  disproving  the  execution  of  the  deed,  or  from 
showing  that  it  is  a  forgery.  His  doing  so  without  previous  netice  to  his  ad- 
versary might  be  a  good  ground  for  a  new  trial,  if  in  the  opinion  of  the  court 
there  was  a  probability  that  injustice  had  been  done^.  Jordan  v.  Robson,  27  T. 
612. 

2 Robinson  v.  Martel,  11  T.  149;  McGehee  v.  Minter,  25  S.  W.  Rep.  718.  The 
paper  must  be  filed  at  least  three  days  before  the  trial.  Hammond  v.  Connolly, 
•62  T.  62. 

A  deed  never  proved  or  acknowledged  for  record,  or  recorded,  may  be  a  valid 
And  effectual  conveyance,  and  is  admissible  in  evidence  upon  proof  of  its  exe- 
•cution.  Fletcher  v.  Ellison,  1  U.  C.  661;  Freiberg  v.  Brunswick-Balke-Collender 
Co.,  4  App.  C.  C.,  §  143.  To  render  a  certified  copy  of  the  record  of  an  instru- 
ment admissible  in  evidence,  the  registry  of  the  original  must  have  been  author- 
ized. Uhl  v.  Musquez,  1  U.  C.  650. 


§  50C.]  8TATCTOBT  RULES  OF  EVIDENCE.  475 

There  cannot  be  a  rule  of  evidence  in  force  in  this  state  which 
inak.-s  a  «1. « «l  evidence  of  title  in  one  county  and  not  in  another,  ex- 
cept as  title  may  be  affected  by  the  question  of  notic  • 

The  notice  of  an  intention  to  use  the  deed  in  evidence,  given  be- 
•  ration,  is  not  sufficient.*     The  statute  is  sufficiently 
complied  with  hy.attaching  the  recorded  instrument  to  the  petition 
in  exhibit,  thus  making  it  part  of  the  pleadings.     This  is  suffi- 
cient notice  of  filing.3 

The  statutory  provision  here  under  consideration  does  not  apply 
to  a  judgment  of  another  court.     Judgments,  in  relation  to  their 
evidence,  are  governed  by  another  provision  of  the  statin 

By  an  act  passed  in  1891,  "all  abstracts  of  land  titles  or  land- 
al»tract  books  to  lands  in  this  state  compiled  from  the  record 
any  county  in  this  state,  prior  to  the  year  1^77,  which  said  records 
were  partially  or  wholly  destroyed  or  lost  from  any  cause,  during 
the  month  of  March.  1>7»V  are  admitted  in  evidence  under  regula- 
tions therein  prescribed.5 

>'  506.  Copy  of  recorded  instrument  admissible. 

Whenever  any  instrument  of  writing  has  been  recorded  in  the 
office  of  the  clerk  of  the  county  court  according  to  law,  and  any 
party  to  a  suit  shall  file  among  the  papers  of  the  cause  an  affidavit 
stating  that  any  such  instrument  has  been  lost,  or  that  he  cannot 
procure  the  original,  a  certified  copy  of  the  record  may  be  admit- 
ted in  like  manner  as  the  original.6 

The  statute  is  in  derogation  of  the  common-law  rules  of  evidence, 

» Hancock  v.  Tram  Lumber  Co.,  65  T.  2:2 ".:  McFaddin  v.  Preston,  54  T.  404. 
"Where,  a  deed  is  recorded  in  one  county,  and  describes  land  in  another  county, 
a  copy  is  not  admissible  without  a  showing  that  at  least  a  part  of  the  land  lay 
in  territory  over  which  the  former  county  had  juri*ilicti<>n.  Tomlinson  v. 
League,  25  S.  W.  Rep.  313;  Falls  L.  &  C.  Co.  v.  Chiaholm.  71  T.  523  (9  S.  W. 
Rep.  479):  Ballaster  v.  Mann,  86  T.  643  (26  a  W.  Rep.  494).  See  Stout  v.  Taul,  71 
T.  4:^  C'J  S.  \V.  H,.,, 

That  the  certificate  of  the  record  of  a  deed  was  not  attested  by  the  proper 
seal  is  no  objection  to  the  competency  of  such  deed  in  evidence,  it  having  been 
shown  by  the  production  of  the  record  \tooks  that  the  deed  was  duly  recorded 
in  >uch  rrc.-nls.  Moses  v.  Dibrell.  2  Civ.  AJ>J>.  4~>7;  Falls  L.&  C.Co.  m. 

71  T.  52  (9  S.  W.  He  p.  479).  A  deed  may  be  read  in  evidence  if  recor  ner 

the  date  of  its  filing  for  record  appear  upon  it  or  not.  Copelin  v.  Shuler,  6  S. 
W.  Rep.  668.  Where  a  deed  is  properly  certified  by  the  county  clerk  as  though 
it  were  properly  a  part  of  the  records  of  his  office,  it  is  prima  facie  admissible, 
Folts  v.  Ferguson.  24  a  W.  Rep.  657. 

-  M.  Ka.l.iin  v.  Preston,  54  T.  404. 

'Lignoski  v.  Crooker.  86  T.  324  (34  a  W.  Rep.  27$,  788);  Watson  v.  Blymer 
Mfg.  Co.,  66  T.  558  <2  s.  \V  Hep.  368). 

«  Cannon  v.  Cannon,  66  T.  682  (3  a  W.  Rep.  86);  McDanicl  v.  Weiss,  53  T.  257. 
*R.a2318. 

*  R.  a  23121 


476  STATUTORY  RULES  OF  EVIDENCE.  [§  506. 

and  must  be  strictly  complied  with  by  the  party  seeking  its  aid.* 
It  must  appear  from  the  affidavit  either  that  the  original  has  been 
lost,  or  that  the  party  cannot  procure  it.  Where  the  affidavit  of- 
fered was,  1st,  that  the  original  was  not,  and  never  had  been,  in 
the  possession  of  the  party ;  and  2d,  that  he  does  not  know  where 
it  can  be  found,  it  was  held  not  to  be  equivalent  to  the  terms  of  the 
statute.2  Where  the  instrument  was  not  in  the  possession  of  the 
partv  at  the  time  of  the  loss,  he  should  make  a  reasonable  search 
for  it.  What  degree  of  diligence  in  the  search  is  necessary  is  not 
easy  to  define,  as  each  case  depends  much  on  its  peculiar  circum- 
stances: the  object  of  the  proof  is  merely  to  establish  a  reasonable 
presumption  of  the  loss  of  the  instrument,  and  this  is  a  preliminary 
inquiry,  addressed  to  the  discretion  of  the  judge.3  If  the  instru- 
ment is  an  important  one,  and  the  loss  of  recent  date,  the  affidavit 
should  show  distinct  acts  of  diligence  to  find  the  instrument,  where 
it  was  deposited,  and  where  last  seen ;  if  the  paper  was  ancient,  or 
of  little  value,  a  less  degree  of  diligence  will  be  necessary.4  It  is 
not  sufficient  proof  of  loss  of  the  instrument  to  prove  the  decla- 
ration merely  of  the  person  in  whose  custody  it  was  at  the  time.5 
The  non-production  of  the  original  instrument  must  be  fully  ex- 
plained in  order  to  admit  a  copy  of  the  record.6  Though  the  cer- 
tified copy  of  a  deed  relied  on  as  a  muniment  of  title  must  be  on 
file  in  the  cause  three  days  before  the  trial  to  authorize  its  intro- 
duction in  evidence,  it  is  not  necessary  that  the  party  offering  it 
should  make  affidavit  to  the  loss  of  its  original  before  the  trial  of 
the  cause  begins,  in  order  that  it  may  be  read  in  evidence.7  A  copy 

1  Cray  ton  v.  Munger,  11  T.  234;  Butler  v.  Dunagan,  19  T.  566;  Hooper  v.  Hall, 
30  T.  154 

2  Crayton  v.  Munger,  11  T.  234.    The  affidavit,  if  made  by  any  person  other 
than  a  party  to  the  suit,  should  exclude  the  supposition  that  the  party  has  it  in 
his  power  to  produce  the  original;  if  made  by  an  agent  or  attorney,  it  is  not 
sufficient  to  state  that  he,  the  agent  or  attorney,  cannot  procure  the  original. 
Butler  v.  Dunagan,  19  T.  559;  Hooper  v.  Hall,  30  T.  154. 

8  Cheatham  v.  Riddle,  8  T.  162.  An  affidavit  by  a  party  stating  that  his  ad- 
versary, who  is  the  grantee,  has  possession  of  a  deed,  has  been  absent  from 
the  state  for  more  than  a  year,  still  is  absent,  and  his  whereabouts  unknown 
to  affiant;  that  it  is  in  existence,  but  knows  not  where  it  is,  and  cannot  produce 
it, —  affords  a  predicate  for  the  admission  of  secondary  evidence  of  its  contents. 
Rolwrtson  v.  Moorer,  25  T.  428. 

«Bateman  v.  Bateman,  16  T.  541;  Graham  v.  Henry,  17  T.  164. 

»Dunn  v.  Choate,  4  T.  14;  Clifton  v.  Lilloy,  12  T.  130;  Hall  v.  York,  16  T.  18. 

6Firebaugh  v.  Ward,  51  T.  409.  An  affidavit  by  one  of  several  defendants, 
that  a  bond  or  deed,  duly  recorded,  has  been  lost  or  mislaid,  and  that  affiant 
proposes  to  use  in  evidence  a  copy  from  the  records,  is  a  sufficient  basis  to  admit 
the  copy,  at  least  in  favor  of  the  affiant.  Nor  is  such  right  affected  by  mere 
pleading  by  the  adverse  party,  alleging  that  the  record  has  been  tampered  with, 
and  its  terms  altered.  Veramendi  v.  Hutchins,  48  T.  531.  A  certified  copy  of 
a  lost  deed  is,  when  the  statute  is  complied  with,  original  evidence  of  the  con- 
tents of  the  original.  Vandergriff  v.  Piercy,  59  T.  371. 

'Ross  v.  Komrumpf,  64  T.  390;  Durham  v.  Atwell,  27  S.  W.  Rep.  316. 


§507.]  8TATI   !"i:Y     KULBC  :i»KNCB.  477 

of  a  deed  certified  from  tin-  records  of  a  county  other  than  the  one 
in  which  the  land  lies  is  not  admissible.1 

A  copy  of  a  deed  purporting  on  its  face  to  be  the  act  of  a  corpo- 
ration, certified  to  by  the  county  clerk,  and  which  recites  that  it 
•  •xeetited  by  the  officers  of  the  company  under  its  corporate 
seal,  is  admissible  in  evidence,  though  a  scroll  bv  \vav  of  seal  is 
placed  in  the  certified  copy  where  the  corporate  seal  should  have 
been  attached  in  the  original.  It  being  a  violation  of  the  dutv  of 
the  recording  officer  to  take  the  acknowledgment  of  the  officers  of 
the  corporation  unless  the  instrument  was  sealed  with  the  corp< 
>eal.  the  presumption  must  obtain  that  it  was  thus  sealed,  after  the 
lapse  of  twenty-live  years  from  its  registration.2 

A  cert i tied  copy  of  a  patent  taken  from  the  county  land  records 
is  subject  to  the  same  rules  as  to  its  competency  as  are  copies  of  in- 
struments duly  recorded,  save  when  offered  to  show  a  common 
source  of  title,  as  provided  in  article  5266  of  the  Revised  Statutes. 
The  admission  of  a  copy  of  a  recorded  patent  taken  from  the  county 
land  register  to  prove  title  in  behalf  of  the  party  offering  it 

hie  error  where  objection  is  made  to  its  introduction  and  the 
statute  was  not  complied  with.3 

^  507.  Affidavit  of  forgery  of  recorded  instrument. 

AY  here  a  party  desires  to  attack  as  a  forgery  a  recorded  instru- 
ment relied  upon  as  evidence  by  the  opposite  party,  he  must  file  his 
affidavit  within  three  days  before  the  trial,  stating  that  he  believes 

1  French  v.  Groesbeck,  27  S.  W.  Rep.  4a  See  Ansaldua  v.  Schwing,  81  T.  198 
(1C  S.  W.  Rep.  989);  League  v.  Thorp,  3  Civ.  App.  573  (22  &  W.  R. ;  ;  3.  W. 

Rep.  685). 

2Catlett  v.  Starr,  70  T.  485  (7  a  W.  Rep.  844).  The  clerk,  in  certifying  to  a 
deed,  certifies  to  everything  upon  it  which  is  required  to  go  upon  the  record  to- 
gether with  the  deed,  and  especially  to  what  must  be  upon  the  deed  before  it 
can  be  recorded.  Copelin  v.  Shuler,  6  S.  W.  Rep.  668.  Copy  offered  to  show 
date  of  sale,  and  excluded.  Held,  harmless  error,  the  date  of  record  being  shown 
by  testimony  of  county  cleric  McCabe  v.  Brown,  25  S.  W.  Rep.  134. 

Where  a  certified  copy  of  a  deed  is  offered  in  evidence,  and  the  certificate  of 
the  officer  states  that  it  was  given  under  his  hand  and  seal,  it  will  be  presumed 
that  tin-  seal  was  impressed  upon  the  original  document     Point. T  v.  Flash,  9 
U.  C.  742.     Fora  record  copy  of  a  deed  to  be  admissible  in  evidence  it  is  not 
necessary  that  it  contain  anything  to  represent  the  seal  required  to  a 
the  certificate  of  acknowledgment  of  the  deed.     Bullard  v.  I*. 
Witt  v.  Harlan,  60  T.  660  (2  S.  W.  Rep.  41).     Where  a  certified  copy  of  a  deed  is 
offered  in  evidence,  and  the  notary  in  his  certificate  declares  that  he  had  affixed 
his  seal  thereto,  it  is  to  be  presumed  that  the  seal  was  properly  at 
though  its  place  is  not  itidi.-at.-d  l>y  th«-  characters  ordinarily  used  for  that  pur- 
pose.   The  same  rule  applies  to  the  record  its.  If.  when  used  instead  of  a  cer 
copy  thereof,  under  agreement  of  counsel.     Coffey  v.  Hendricks,  66  T.  676 
(2  a  W.  Rep.  47). 

» Rio  Grande  &  R  P.  Ry.  Co.  v.  Milmo  Nat  Bank,  72  T.  467  (10  S.  W.  Rep.  563). 
See  Lanier  v.  Ferryman,  59  T.  104. 


478  STATUTORY  RULES  OF  EVIDENCE.  [§  508.. 

the  instrument  to  be  forged.  This  imposes  upon  the  other  party 
the  burden  of  proving  the  execution  of  the  instrument.  The  stat- 
ute has  reference  to  such  instruments  as  are  permitted  or  required 
to  be  recorded  in  the  office  of  the  clerk  of  the  county  court.1  Where 
defendant  pleads  non  estfactum  to  the  deed  under  which  the  plaint- 
iff claims,  it  devolves  upon  the  plaintiff  to  prove  by  some  of  the 
modes  of  evidence  of  the  common  law  the  execution  of  the  deed  so 
attacked.  It  then  devolves  upon  the  defendant  to  support  his  plea 
with  testimony  to  the  forgery  of  the  deed.  The  plea  itself  is  not 
testimony ;  and  where  no  testimony  supporting  the  plea  was  intro- 
duced, it  was  held  error  to  submit  the  question  of  forgery  to  the 
jury.2  If  the  instrument  is  not  filed  in  the  case  by  the  party  rely- 
ing upon  it,  an  affidavit  of  forgery  is  not  necessary  to  require  proof 
of  its  execution.3  The  affidavit  of  one  who  is  a  stranger  to  the  rec- 
ord will  be  sufficient.4  An  affidavit  attacking  the  power  under  which 
an  agent  executed  a  deed  which  was  duly  acknowledged  and  re- 
corded does  not  prevent  such  deed  from  being  admitted  in  evidence.1 

§  508.  Transcribed  records  of  new  counties. 

Where  a  county  has  been  created  out  of  the  territory  of  any  or. 
ganized  county,  and  the  records  of  deeds  and  other  instruments 
required  or  permitted  by  law  to  be  recorded,  relating  to  lands  or 
other  property  in  such  new  county,  have  been  transcribed  and 
placed  on  record  in  such  new  county,  in  accordance  with  law,6  cer- 
tified copies  of  such  transcribed  records  in  the  new  county  may  be 
admitted  in  evidence  with  like  effect  as  certified  copies  of  the  orig- 
inal records.7  By  an  act  of  1879  it  is  provided  that  transcribed 

1  R.  S.  2312. 

2  Robertson  v.  Du  Bose,  76  T.  1  (13  S.  W.  Rep.  300);  Cox  v.  Cock,  59  T.  C21;  Cair- 
-rell  v.  Higgs,  1  U.  C.  56.    Proof  of  the  due  execution  of  the  deed  must  be  made 
by  the  production  of  the  subscribing  witnesses,  or  one  of  them,  if  living,  or  if 
dead,  incompetent  to  testify,  or  not  to  be  procured,  then  by  proof  of  their  hand- 
writing.   Proof  of  handwriting  may  be  made  by  one  who  has  seen  the  partjr 
write,  or,  having  received  letters  from  him  purporting  to  be  in  his  handwriting,, 
has  afterwards  communicated  with  him  personally  respecting  them.    (1  Greenl. 
763-769.)    Cairrell  v.  Higgs,  1  U.  C.  56.    Evidence  as  to  the  reputation  of  the  sub- 
scribing witnesses  does  not  of  itself  alone  establish  the  genuineness  of  the  deed  in, 
question.    The  execution  of  such  deed  being  not  sufficiently  proved  by  such  evi- 
dence alone,  it  is  error  to  permit  copies  from  the  record,  or  even  the  original,  to 
be  admitted  in  evidence.    A  deed  between  the  same  parties,  which  may  be  in 
every  respect  legal,  but  relating  to  land  in  no  way  connected  with  that  in  con- 
troversy, is  inadmissible  to  prove  up  an  instrument  whose  forgery  is  alleged. 
(Holmes  v.  Coryell,  58  T.  685;  Newby  v.  Haltaman,  43  T.  317,  and  other  cases, 
cited.)    Belcher  v.  Fox,  60  T.  527. 

3  Brown  v.  Perez,  25  S.  W.  Rep.  980. 

4  Story  v.  Flanagan,  57  T.  649. 

•  Moses  v.  Dibrell,  2  Civ.  App.  457  (21  S.  W.  Rep.  414). 
«R.S.  4668. 
'R.  S.  2319. 


§  509.]  STATUTORY  RULES  OF  EVIDENCE.  479 

records  for  new  counties  or  for  newly-attached  territory,  as  pro- 
l  for  by  law,  when  properly  verified  and  certified  shall  have 
all  the  force  and  effect  in  judicial  proceedings  in  courts  of  this  state 
as  the  original  records.1  Provision  is  now  made  for  keeping  sepa- 
rate books  of  record  for  unorganized  counties,  to  be  delivered  to 
the  proper  officer  when  the  county  is  organized,  or  is  detached  and 
attached  to  some  other  county.  Where  such  separate  records  have- 
not  heretofore  been  kept,  provision  is  made  for  furnishing  certified 
transcripts  of  the  record  to  the  proper  officer,  on  the  organization 
of  the  county  or  its  attachment  to  another  county.1 

g  5O9.  Translated  copies  of  land  office  records. 

Translated  copies  of  all  records  in  the  land  office,  certified  to 
under  the  hand  of  the  translator  and  the  commissioner  of  the  gen- 
eral land  office,  attested  with  the  seal  of  said  office,  are  j>< 
facie  evidence  in  all  cases  where  the  original  records  would  be  evi- 
dence.1 The  usual  form  of  authentication  is  for  the  translator  to  cer- 
tify the  correctness  of  the  translation,  and  for  the  commissioner  to 
certify  that  he  is  the  translator.*  In  the  absence  of  the  commissi.  >nor 
of  the  general  land  office  the  chief  clerk  can  authenticate  all  instru- 
ments required  to  be  authenticated  by  the  commissioner,  and  when 
the  chief  clerk  acts  it  will  be  presumed  that  the  facts  authorizing 
him  to  act  existed.5 

The  translation  of  a  general  land  office  archive  paper  from  the 
original  Spanish  into  English,  made  by  the  Spanish  translator  in  the 

» R  S.  2320. 

»  Acts  1887,  p.  94;  R  S.  4641.    See  Lumkin  v.  Muncey.  66  T.  311  (17  a  W.  Rep. 
Ufor.l  v.  Jones.  71  T.  519  (9  S.  W.  Rep.  470);  Falls  Land  Co.  v.  Chisholm,  71 
y  S.  \V.  Rep  479);  Baker  v.  Beck,  74  T.  562  (12  S.  W.  Rep.  229);  Broussard  v. 
Dull,  3  Civ.  App.  59  (21  S.  W.  Rep.  937). 

»  R.  &  2306;  Hatchett  v.  Conner,  80  T.  104.  A  certified  copy  of  a  paper  coming 
from  the  land  office  is  not  admissible  in  evidence,  unless  the  paper  be  a  public 
document  of  which  the  commissioner  is  the  legal  custodian.  A  paper,  to  be  en- 
titled to  admission  into  the  land  office  as  an  archive,  must  have  constituted  an 
archive  or  record  of  some  former  office.  It  is  immaterial  in  whose  possession 
the  paper  may  have  been  before  its  deposit;  whether  in  that  of  an  einpresario, 
political  chief,  alcalde,  commissary  or  commissioner  for  issuing  land  titles,  or 
any  other  person,  provided  it  shall  have  been  an  archive  or  an  original  docu- 
ment or  register  in  some  office,  and  appertained  to  the  land  of  thw  republic. 
But  a  second  copy  of  a  title  which  was  granted  by  the  governor  of  Coahuila 
and  Texas  on  the  petition  of  the  interested  party  and  certified  as  tru.-  by  th»> 
secretary  of  state,  being  issued  to  the  interested  party  in  1*  :i  f'-r  \\\>  j>r«n 
and  to  serve  him  as  evidence  of  his  title,  was  held  not  to  be  in  tlu>  «>thVi:i 
tody  of  the  commissioner  of  the  general  land  office,  and  a 
was  therefore  inadmissible.  Paschal  v.  Perez,  7  T.  348.  A  testimonio  deposited 
in  the  land  office  is  n..t  a  n-«.r.i  thereof.  Hatchett  v.  Conner,  30  T.  104. 

« Hubert  v.  Bartlett,  9  T.  97;  Swift  v.  Herrera,  9  T.  263;  Spillars  v.  Curry,  10 
T.  143. 

•Spillars  v.  Curry,  10  T.  143;  R  a  2874 


480  STATUTORY  RULES  OF  EVIDENCE.       [§§  510,  511. 

general  land  office,  and  attached  to  his  deposition  as  an  exhibit, 
with  his  certificate  of  its  correctness,  is  admissible  in  evidence,  in 
connection  with  his  testimony  showing  his  ability  to  read  and 
write  the  Spanish  language,  and  that  he  had  attached  the  exhibit 
as  a  translation  of  the  archive  Spanish  paper.1 

£  51O.  Copies  of  instruments  filed  prior  to  1837. 

Copies  of  all  conveyances  and  other  instruments  of  writing  be- 
tween private  individuals,  which  were  filed  in  the  office  of  any 
alcalde  or  judge  in  Texas  previous  to  the  first  Monday  in  February, 
1837,  are  admissible  in  evidence,  and  have  the  same  force  and  effect 
as  the  originals  thereof;  but  such  copies  must  be  certified  under 
the  hand  and  official  seal  of  the  officer  with  whom  the  originals  are 
now  deposited.2  Such  copies  are  admissible  in  evidence  without 
other  proof  of  the  originals,  and  without  the  necessity  of  filing  three 
days  previous  to  the  commencement  of  the  trial  and  of  giving  no- 
tice to  the  opposite  party.3  To  make  a  copy  admissible  in  evidence, 
the  original  must  have  been  executed  with  all  the  formalities  re- 
quired at  the  time  to  constitute  it  a  public  or  authentic  act ;  and  if 
it  wants  the  signature  of  the  officer  before  whom  it  was  executed,4 
or  was  executed  without  either  instrumental  or  assisting  witnesses,5 
or  with  but  one  assisting  witness,6  while  the  conveyance  is  valid,  it 
cannot  be  read  in  evidence  without  proof  of  its  execution  according 
to  the  general  principles  of  evidence.7 

§  511.  Certain  titles  not  evidence,  unless,  etc. 

Titles  to  land  which  may  have  been  deposited  in  the  general  land 
office  subsequently  to  the  time  when  the  land  embraced  by  such 
titles  had  been  located  or  surveyed,  by  virtue  of  valid  land  war- 
rants or  certificates,  are  not  received  as  evidence  of  superior  title 
to  the  land,  against  any  such  location  or  survey,  unless  such  elder 
title  had  been  duly  recorded  in  the  office  of  the  county  clerk  of  the 
county  where  the  land  may  have  been  situated  prior  to  the  location 
and  survey,  or  unless  the  party  having  such  location  or  survey  made 

i  Houston  v.  Blythe,  60  T.  506.  See  Tex.  Hex.  Ry.  Co.  v.  Locke,  74  T.  370  (17 
S.  W.  Rep.  80). 

2R.  S.  2311;  Andrews  v.  Marshall,  26  T.  212. 

3  Hubert  v.  Bartlett,  9  T.  97;  Andrews  v.  Marshall,  26  T.  212. 

<  Andrews  v.  Marshall,  26  T.  212. 

'Grimes  v.  Bastrop,  26  T.  310. 

6  Clay  v.  Holbert,  14  T.  189;  Ruis  v.  Chambers,  15  T.  586;  Watrous  v.  McGrew, 
16  T.  506. 

"  Clay  v.  Holbert,  14  T.  189;  Andrews  v.  Marshall,  26  T.  212.  A  certified  copy 
of  the  notarial  act  of  a  judge  of  the  first  instance,  made  in  December,  1835, 
which  was  certified  to  by  the  county  clerk  as  being  a  copy  of  the  original  which 
was  on  file  in  his  office,  and  which  was  an  archive  thereof,  is  admissible  in  evi- 
dence without  proof  of  the  execution  of  the  original  Storey  v.  Flanagan,  57  T. 
650. 


§512.]  STATUTORY    RULES   OF    EMM-  M 

had  actual  notice  of  the  existence  of  such  elder  title  before  he  made 
such  location  <»r  >nr\  • 

?  512.  Record  of  certain  titles  confirmed;  shall  be  evidence,  when. 

The  act  of  February  9,  I860,  provides  as  follows:  "Any  irrant, 
deed,  or  other  instrument  of  writing  for  the  convex  a:  il  «•>- 

tate  or  personal  property,  or  both,  or  for  the  settlement  thereof  in 
marriage,  or  separate  property,  or  conveyance  of  the  same  in  mort- 
gage, or  trust  to  us.-s.  or  on  conditions,  as  well  as  any  and  every  other 
deed  or  instrument  required  or  permitted  by  law  to  be  registered, 
and  which  shall  have  been,  prior  to  the  Oth  dav  of  February, 

1  or  recorded,  shall  be  held  to  have  been  lawfully  regis- 
tered. with  the  full  effect  and  consequences  of  e:  1st  ing  laws;  pro- 
/,  the  same  shall  have  been  acknowledged  by  the  grantor  or 
grantors  before  any  chief  justice,  or  associate  justices,  or  clerk  of 
the  county  court,  or  notary  public  in  any  county  within  the  late 
republic  or  the  now  state  of  Texas,  or  judge  of  the  department  of 
Brazos,  or  any  primary  judge,  or  judge  of  the  first  instance  in 
or  1^3*;,  or  pi-oven  before  any  such  officer  by  one  or  more  of  the 
subscribing  witnesses  thereto,  and  certified  by  such  officer,  whether 
such  acknowledgment  or  proof  shall  have  been  made  before  any 
such  officer  of  the  county  where  such  instrument  should  have 
recorded  or  not* 

"All  such  instruments  which  shall  have  been  acknowledged  or 
proven  before  any  officer  named  in  the  preceding  article,  and  which 
shall  have  been  afterward  recorded  in  the  proper  county,  or  cer- 
tified copies  thereof,  shall  be  evidence  in  the  courts,  as  full 
sufficient  as  if  such  acknowledgment  had  been  taken  or  proof  made 
in  accordance  with  existing  laws;  but  this  article  and  the  article 
preceding  shall  not  be  construed  so  as  to  affect  or  bind,  in  any  man- 
ner, any  person  or  party  with  constructive  notice  of  the  e 
of  any  deed  or  other  instrument  of  writing  as  a  recur  led  d-  ••••!  ,  ,r 
instrument,  except  after  the  9th  day  of  February,  ISO",  ami  in  the 
future."1 

•R  - 


»R  S.  4667.     The  constitution  of  1876  provides  that  no  claim  of  title  or  ri^ht 

to  land  which  issued  prior  to  the  13th  day  of  November,  1835,  and  which  has 

not  been  duly  recorded  in  the  county  where  the  land  was  situated  a- 

of  such  record,  or  which  has  not  been  duly  archived  in  the  general  land  office, 

shall  ever  leposited  in  the  general  land  office,  or  recorded  in  this 

state,  or  delin.Mt.  -I  on  the  maps,  or  used  as  evidence  in  any  of  the  courts  of  this 

Such  rights  :ni'i  presumptions  as  arise  from  actual  possession  are  not  af- 

by  thi>  )  ''ily  rrcw  ;tle  or 

right  must  have  ben  !  in  the  proper  office,  and  that  mere  errors  in  the 

••ate  of  r.  .nformality,  not  allrrtin^  the  fairness  and  good 

t;iitli  of  the  holder  of  the  claim,  shall  not  be  held  to  vitiate  the  record.    Const, 

31 


482  STATUTORY    RULES   OF   EVIDENCE.  [§§  513,  514. 

S  513.  Copies  of  records  of  county  surveyors. 

County  surveyors  are  required  to  record  in  a  w  oil-bound  book  all 
the  surveys  in  the  county  or  district  for  which  they  were  elected, 
with  the  plats  thereof  that  they  may  make,  whether  private  or  of- 
ficial, and  certified  copies  of  such  record  under  the  official  signature 
of  the  surveyor  may  be  used  in  evidence  in  any  of  the  courts  of  this 
state.1 

§  514.  Archives  of  former  governments. 

Archives  of  the  offices  of  the  former  government  are  admissible 
in  evidence  in  cases  where  they  are  not  irrelevant;  and  where  an 
archive  which  concerned  the  title  to  land  was  produced  from  the 
person  who  possessed  and  claimed  the  land,  and  it  was  identified 
by  a  witness,  who  testified  that  he  had  seen  it  on  record  among  the 
archives  of  the  department  at  San  Antonio,  in  1834  and  1835;  the 
same  witness  testifying  that,  during  the  revolution  of  1836,  the  pub- 
lic records  were  scattered  about  the  rooms  in  which  they  were 
kept ;  that  persons  took  possession  of  those  in  which  they  were  in- 
terested, and  that  this  archive  was  taken  possession  of  by  some  one, 
he  did  not  know  by  whom, —  it  was  held  that  under  the  circum- 
stances the  fact  that  it  did  not  come  directly  from  the  proper  cus- 
tody was  no  objection  to  admissibility.2  But  where,  by  the  change 
of  government  in  this  state,  the  original  now  remains  as  an  archive 
of  a  foreign  state,  and  there  is  no  means  of  testing  its  genuineness, 
or  the  verity  of  the  proffered  copy,  by  any  record  or  other  evidence 
within  the  limits  of  our  jurisdiction,  extrinsic  evidence  of  the  exe- 
cution or  genuineness  of  the  instrument  offered  must  be  produced.3 

art  XIII,  §  4  This  provision  was  held  in  conflict  with  the  constitution  of  the 
United  States  in  Tex.  Hex.  Ry.  Co.  v.  Locke,  74  T.  370  (12  S.  W.  Rep.  80).  In 
Downing  v.  Diaz,  80  T.  436  (16  S.  W.  Rep.  49),  it  was  held  not  to  apply  to  titles 
evidenced  by  records  in  the  land  office  at  the  time,  as  were  titles  evidenced  by 
the  Haynes  report.  In  Tex.  Mex.  Ry.  Co.  v.  Jarvis,  69  T.  527  (7  S.  W.  Rep.  210), 
it  was  held  to  have  no  application  to  the  transcript  of  the  visita  general  of  1767 
concerning  the  city  of  Laredo,  deposited  in  the  land  office  before  the  adoption 
of  the  constitution,  and  that  the  admissibility  in  evidence  of  copies  from  the 
land  office  of  such  transcripts  is  not  affected  by  article  63  of  the  Revised  Stat- 
utes, in  respect  to  archives  of  the  general  land  office. 

By  an  act  passed  in  1881  (sub-section  6  of  article  62  of  the  Revised  Statutes), 
owners  of  land  between  the  Nueces  and  Rio  Grande  rivers,  under  grants  or 
titles  from  the  former  government,  such  as  are  described  in  the  above  constitu- 
tional provision,  and  which  have  been  recorded  in  the  respective  counties  in 
which  the  land  is  situated,  but  not  archived  in  the  general  land  office,  are  re- 
quired to  deposit  and  archive  their  titles  in  the  general  land  olrice.  Such  titles 
when  so  archived  remain  subject  to  all  defenses. 

1  R.  S.  2307.    Certified  copies  of  the  records  of  offices  of  district  and  oounty 
surveyors  are  admissible  to  show  by  what  certificate  a  given  survey  was  made. 
Stout  v.  Taul.  71  T.  438. 

2  Herndon  v.  Casiano,  7  T.  322. 

'Paschal  v.  Perez,  7  T.  348;  Ward  v.  McXinney,  25  T.  258;  Lambert  v.  Weir, 


§515.]  .ITToUY     i:ri.I->    «»F     KVIDKNCE.  483 

?•  515.  Miscellaneous  statutory  provisions. 

Tlif  board  appointed  to  examine  practicing  denti>ts  is  required  to 

iter  in  a  book  the  names  of  all  persons  licensed  to  practice  den- 

tistry by  such  board,  ami  a  transcript  from  such  book,  certified  to 

by  the  officer  who  has  it  in  keeping,  with  the  common  seal  of  the 

l»oar«l,  is  evidence  in  any  court  of  this  state.1 

Kvery  instrument  executed  by  the  commissioner  of  insurance  of 
tjjis  state,  or  of  any  other  state  in  which  the  substantial  prov 
of  the  laws  of  this  state  relating  to  insurance  have  heen  or  shall  IK* 
enacted,  pursuant  to  authority  conferred  by  law  and  authenti< 
by  his  seal   of  office,  will  be  received   as  evidence,  and   copi, 
papers  and  records  in   his  office  certified  by  him,  and  so  authenti- 
I,  will  be  received  as  evidence  with  the  same  <• 

An  affidavit  of  the  publication  of  the  terms  of  a  limited  partner- 
ship, made  by  the  publisher  of  the  newspaper  in  which  the  publica- 
tion is  made,  may  be  filed  with  the  clerk  directing  the  publication, 
and  is  made  evidence  of  the  facts  therein  contained.1 

It  is  made  the  duty  of  the  railroad  commission,  upon  application 
of  any  person,  to  furnish  certified  copies  of  any  classification,  rates, 
rules,  regulations  or  orders;  and  such  certified  copies,  or  printed 
copies  puldished  by  authority  of  the  commission,  are  admissible  in 
evidence  in  any  suit,  and  sufficient  to  establish  the  fact  that  any 
charge,  rate,  rule,  order  or  classification  therein  contained,  and 
which  may  be  in  issue  in  the  trial,  is  the  official  act  of  the  commis- 
sion.4 

27  T.  359.    Though  the  practice  has  prevailed  of  permitting  int  -Hi-  it  M   \ 
who  are  not  lawyers,  to  testify  in  relation  to  the  laws  of  Sjwiin  and 
suits  involving  title  to  lauds,  such  evidence  is  only  valuable  as  showing  the  con- 
t-  !ii|M.raiH'ou8  construction  given  to  such  laws,  and  beyond  this  is  valueleM 
when  introduced  to  show  what  constitutes  title.     An  instrument  rt-rtili.-d  toby 
an  officer  of  a  foreign  government,  which  purports  t«-  B  the 

archives  of  his  office,  and  which  also  contains,  in  the  language  of  the  <•' 
descriptive  recitals  of  other  matters,  which  he  alleges  are  contained  in  said 
archive^,  cannot  be  used  as  evidence  when  the  recitals  in  th«-  instrum 
which  the  certificate  is  attached  are  necessary  to  make  intelligible  tin-  t  x  tracts 
from  the  archives.    State  v.  Cuellar,  47  T.  285. 
»  R  S.  1683,  1684, 


&  3592. 


CHAPTEE  XXXI. 


INTRODUCTION  OF  EVIDENCE. 


516.  Time  and  order  of  introducing 

evidence. 

517.  Omission  in  testimony  may  be 

supplied. 

518.  Exceptions  to  admission  or  ex- 

clusion of  evidence. 

519.  Examination  of  witnesses. 

520.  Leading  questions. 

521.  Cross-examination. 

522.  Discrediting  or  impeaching  wit- 

nesses. 

523.  General  rules  as  to  impeachment 

of  witnesses. 


524.  Impeachment  by  proof  of  repu- 

tation. 

525.  Impeachment  by  proof  of  con- 

tradictory statements. 

526.  Impeachment    by  reference  to 

former  testimony. 

527.  Testimony  admitted  for  specific 

purpose. 

528.  Evidence  improperly  admitted 

may  be  withdrawn. 

529.  Amount  of  cumulative  evidence 

may  be  limited. 

530.  Placing  witnesses  under  the  rule. 


§  516.  Time  and  order  of  introducing  evidence. 

The  party,  plaintiff  or  defendant,  on  whom  rests  the  burden  of 
proof  on  the  whole  case,  begins  and  offers  his  evidence  in  chief,  and 
is  followed  by  the  opposite  party,  after  which  the  intervener,  if  any, 
offers  his  evidence.  The  parties  are  them  confined  to  rebutting 
testimony  on  each  side.1  The  defendant  may  admit  plaintiff's  cause 
of  action,  and  thus  obtain  the  right  to  open  and  close.2 

The  party  who  opens  the  case  is  not  bound  to  do  more  than  in- 
troduce enough  evidence  to  make  a  prima  facie  case  for  recovery ; 
he  may  strengthen  his  case  by  other  evidence  after  it  has  been  at- 
tacked by  his  adversary.  Hence,  when,  in  a  case  of  trespass  to  try 
title,  after  the  defendant,  whose  deed  had  been  attacked  as  a  for- 
gery, had  made  a  prim&  facie  case  of  its  genuineness,  and  the 
plaintiff  had  introduced  evidence  in  rebuttal  showing  that  the 
grantor  in  the  deed  was  not  at  the  place  where  it  purported  to  bear 
date  at  that  time,  the  defendant  was  properly  permitted  to  show 
by  other  witnesses  that  the  grantor  was  at  that  place  at  the  time 
the  deed  bore  date,  and  to  strengthen  his  case  by  other  evidence. 
Such  practice  is  not  violative  of  rule  31  of  the  lower  courts.3  But 
where  a  party  offers  a  part  of  his  evidence  and  rests,  and  such  evi- 

1  R  S.  1297. 

2  Rule  31. 

'Mahan  v.  Wolf,  61  T.  488;  Markham  v.  Carothers.  47  T.  21;  Bounds  v.  Little, 
79  T.  128  (15  S.  W.  Rep.  225):  Mayer  v.  Walker,  82  T.  222  (17  S.  W.  Rep.  505);  San 
A.  &  A.  P.  Ry.  Co:  v.  Robinson,  79  T.  608  (15  S.  W.  Rep.  584);  Carroll  v.  Watson, 
1  App.  C.  C.,  §  403, 


§  517.]  I.VIK«.I>UTI..N   01 

dence  is  not  attacked  liy  his  adversary,  any  additional  r>viil«»nce  is 
lilt-rely  cumulative  and  not  in  rebuttal,  and  is  proptjrlv  cxclnd 

The  order  in  which  evidence  may  bo  introduced  is  largely  in  the 
discretion  of  the  judge.3 

The  order  in  which  evidence  may  bo  introduced  may  often  di-pmd 
upon  its  relevancy  at  the  time  it  is  offered  as  shown  by  the  facts  then 
proved.  The  rule  is  that  when  the  relevancy  of  testimonv  depends 
upon  the  existence  of  other  facts,  and  no  evidence  is  offered  to  es- 
tablish -such  facts,  and  no  statement  made  that  counsel  <• 
prove  them,  it  is  not  error  to  exclude  the  testimony.1 

£  517.  Omission  in  testimony  may  be  supplied. 

The  court  may  at  its  discretion,  at  any  time  before  the  conclusion 
of  the  argument,  where  it  appears  to  be  necessary  to  the  due  ad- 
ministration of  justice,  allow  a  party  to  supply  an  omission  in  the 
testimony,  on  such  terms  and  under  such  limitations  as  it  may  pre- 
scribe.' 

Whether  the  plaintiff,  after  the  defendant  has  closed  his  ; 
mony,  shall  be  permitted  to  introduce  evidence  not  in  rebuttal, 
in  the  discretion  of  the  presiding  judge.5    The  statute  lea\ 
largely  within  the  discretion  of  the  trial  judge  as  to  the  admi 
of  testimony,  and  defects  in  proof  may  be  supplied  at  any  time  be- 
fore the  conclusion  of  the  argument.     And  where  the  testimony  is 
confirmatory  of  the  prima  facie  case  already  made*  by  the  party 
offering  it,  ami  fortifies  the  case  upon  points  wherein  it 

1  Avers  v.  Harris,  77  T.  108  (18  &yw.  Rep-  768X    In  an  action  for  slander  plaint- 
iff is  not  required  to  prove  a  good  character  in  tho  first  inMamv;  it  hi>  el 
ter  is  attacked,  he  may  offer  evidence  in  rebuttal    Cooper  v.  Fi  1    I »".. 

Att >T  a  defendant  had  closed  his  testimony,  it  was  hold  proi*r  to  allow  the 
plaintiff  to  .-.wear  in  rebuttal  to  an  instrument  in  writing  introduced  A{ 
him  tluit  In-  in"  it,  when  it  was  not  set  out  in  tin-  pK-adings  of  the  de- 

fendant so  that  a  plea  of  new  est  ^factum  could  be  interposed;  he  couM  : 
•xpeotod  t«>  anticipate  it  if  he  never  executed  it.    Williams  v.  Deen,  5  riv.  A  pp. 
:i  s.  \V.  K,.p.  .->;J6). 

-t  aniwny  v.  i  'itiwns'  Nat,  Bank,  29  a  W.  Rep.  506;   &  A.  &  ('a  v. 

Kol.inson,  79  T.  608  (lo  S.  \V.    K,-p.   H84);   MarUham  v.  Carol  h.  r-.  \1  T.   It 

ronsi-,tintf  of  imli-p.-n.lcnt  facts  maybe  intro-hic.'.l   in  su.'li  ur.U-r  as  to 
th.-  <-.,urt  may  s.-.-m  propt-r.     Kains  v.  Hoo.l.  •>:',  T.  .*>.V>.     Wlu-n  nun  «V 
pl.-a  l.-.l  in  a  >uit  ->n  ;t  noti-,  the  plaintiff  is  not  r« -.tricti-.l  l>y  tli--  pl«-a  or  th. 
tice  of  thfc,.nrt>toa  [.articular  ..r.li-r  in  tin-  introduction  of  t.'Miinony  topru\c 
tli.  .  xeoution  of  the  note.     If  h-  provi-s  all  tin-  fact*  necessary  to  make  out  his 
ca-f,  thf  tlff'-inlant    caniU't  complain  of  tin-  'ipli-r   in  wliich  the  ev:  : 
offm-l.  unli-s  it  can  be  shown  that  the  onl.T  in  whii-h  it  was  presented  t« 
ti>  misl.'.'ul  aii'l  i-ml>arraNS  tin-  jury.     Davis  \-.  \V:lli<.  17  T.  I'tl.     S.-.-  It.  \V.  &  D. 

C  i;>.  r,,.  v.  .loin !-,,!!..-)  civ.  A.pfx9i(9fl  s.  \v.  I,1.  '    •  I  v,  Ucton,  E 

App'  lls,-j:S.   \V.   IJ.p.  !!:!•;    liny  v.  M,  •'.  -  S.   \V.  K-  p.    1U',;   1 

,V  D.  i  v.  Wihyii.  sr,T.  :•!«( -.'•.' S.  \V. 

ll.ns.'x   v.  I!  1. •!),  ')S.  \V. 

•  i; 

»  Williams  v.  Ball,  52  T.  603. 


•±s  1 1  INTRODUCTION   OF   EVIDENCE.  [§  518. 

attacked,  a  refusal  to  admit  it  has  been  held  to  be  error.1  It  would 
require  a  clear  case  of  abuse  to  authorize  a  reversal  for  the  simple 
admission  of  evidence  out  of  the  order  prescribed  by  article  1297 
of  the  Revised  Statutes.2 

By  the  terms  of  the  statute  the  discretion  of  the  court  extends  to 
the  admission  of  evidence  at  any  time  before  the  conclusion  of  the 
argument,  and,  although  no  provision  is  made  by  law*  for  the  ad- 
mission of  additional  evidence  after  argument,  it  is  held  that  this 
would  be  within  the  discretion  of  the  court;  especially  where  the 
trial  is  without  a  jury.  It  is  suggested  that  it  would  be  proper  to 
allow  additional  argument  in  such  case.3  It  is  held  that  the  action 
of  the  court  in  permitting  a  plaintiff  to  introduce  additional  evi- 
dence after  the  argument  has  begun  will  not  be  revised,  unless  the 
defendant  is  prejudiced  thereby;  as  when,  in  consequence  of  the 
failure  to  introduce  the  evidence  at  the  proper  time,  he  was  not 
prepared  with  rebutting  or  explanatory  evidence,  or  was  not  al- 
lowed to  comment  in  argument  on  the  evidence  after  it  was  intro- 
duced.4 Where  there  is  a  failure  to  use  due  diligence  to  offer  evi- 
dence at  the  proper  time,  the  refusal  of  the  court  to  admit  it  during 
the  closing  argument  of  plaintiff's  counsel  will  not  be  revised,  al- 
though the  evidence  was  admissible  and  important.5  It  is  within 
the  discretion  of  the  court  to  permit  a  plaintiff  who  has  testified  to 
be  recalled  to  correct  his  testimony.6 

g  518.  Exceptions  to  admission  or  exclusion  of  evidence. 

Exceptions  to  the  admission  of  evidence  will  not  be  sustained 
when  no  reason  is  assigned  for  objecting,  if  the  evidence  is  obviously 
competent  and  admissible  as  tending  to  prove  any  of  the  facts  put 
in  issue  by  the  pleadings.  The  court  may,  in  all  cases,  call  upon 
the  party  offering  evidence  to  explain  the  object  of  its  admission, 

i  G.,  C.  &  S.  F.  Ry.  Co.  v.  Holliday,  65  T.  512. 

2Folts  v.  Ferguson,  24  S.  W.  Rep.  657. 

'Meyers  v.  Maverick,  28  S.  W.  Rep.  716.  The  recalling  of  a  witness  or  admit- 
ting evidence  after  argument  has  commenced  is  within  the  discretion  of  the 
court  whenever,  in  his  judgment,  the  testimony  offered  is  material  to  the  ends 
of  justice.  It  is  said  that  the  practice  should  rarely  be  allowed  of  recalling  a 
wi  ness,  and  should  never  be  permitted  where  a  party  to  the  suit  proposes  to 
take  the  stand  as  a  witness  in  order  to  materially  and  substantially  change  his 
own  testimony.  Walker  v.  Taul,  1  App.  C.  C.,  §  32;  Marx  v.  Lange,  61  T.  547; 
Haney  v.  Clark.  65  T.  93;  G.,  C.  &  S.  F.  Ry.  Co.  v.  Johnson,  83  T.  628  (19  S.  W. 
Rep.  151). 

4  Pope  v.  Davenport,  52  T.  206.  The  action  of  the  trial  court  in  refusing  de- 
fendant permission  to  introduce  evidence  after  close  of  the  plaintiff's  case  in 
rebuttal  will  not  be  reviewed  on  appeal,  especially  where  no  reason  is  shown  for 
the  failure  to  offer  the  evidence  in  proper  order.  M.,  K.  &  T.  R.  Co.  of  Texas  v. 
Bliss,  27  S.  W.  Rep.  219. 

T.  .\.  &  Pac.  Ry.  Co.  v.  Curry,- 64  T.  85. 

G  G.,  C.  &  S.  F.  Ry.  Co.  v.  Poo'l,  70  T.  713. 


i^.]  INTRODUCTION   OF   EV  : 


and  also  upon  the  party  caEoeptiBg  to  .irivethe  IV.I-OMS  for  bfa  objec- 

tions.     When  the  grounds  of  objection  arc  stated,  the  «• 

must  be  «  -d  with  reference  to  the  ground- 

oeptions  to  the  admission  or  exclusion  of  evidence  must  Ire  decided 

at  the  time  they  an-  made,  after  such  argument  as  the  court  may 

allow,  and  the  court  must  make  a  memorandum   of  the  point 

rtiKtl  on.1 

The  rule  is  that  objection  must  be  made  in  the  I«.  \\.-r  court,  • 
the  evidence  is  otlered.-'    The  appellate  court  will  c<  o:ilv 

such  objections  as  were  made  below,8  and  such  only  as  the  iv 
shows  \veiv  acted  upon.4 

Objection  should  be  made  as  soon  as  the  inadmiasibility  of  ; 
mom  i   by  the  examination  of  the  witness.     It  should 

then  lx*  insisted  on.  and  if  it  be  not  sustained  exception  six  mid  be 
reserved;1  the  proper  practice  is  to  withdraw  from  the  jury 
evidence  as  has  been  admitted  without  objection,  as  soon 
admissibility  is  discovered.6    Where  hearsay  evidence  is  admitted 
without  objection,  it  should  be  treated  by  the  court  as  comp. 
for  the  purpose  for  which  it  was  offered,  provided  it  is  uneoiitra 
dicted.     The   presumption   is  that  if  it  had  been  obj'vted  to  and 
excluded,  otiit-r  evidence  would  have  been  offered  in  its  pi 

The  ruling  of  the  court  on  the  introduction  of  testimony,  where 
the  ground  of  the  objection  is  not  stated,  will  not  be  i 
it  relates  to  the  relevancy  or  competency  of  the  « 
The  court  may  in  its  discretion  refuse  to  entertain  an  objection  to 
a  question  propounded  to  a  witness  unless  the  ground  of  obj. 
be  stated;  I  nit  should  a  general  objection  be  entertained  and  cor- 
rectly sustained,  it  would  be  no  ground  for  reversal,  no  substantial 
error  having  been  committed.9     Where  part  of  t!  lony  of  a 

»  Rules  57.  5*.  60. 

-'  Wat*  ,n  v.  Illymer  Mf£.  Co..  68  T.  558  (2  &  W.  Rep.  85.T  •  'owan,  64 

I  in  v.  Prater.  3  a  W.  Rep.  806;  Ballew  v.  Ca^  p.  1W; 

Cariii..n  v.  Cannon.  M  T.  fiv>  (3  S.  W.  Rep.  36):  Collins  v.  Hank,  75  T.  251 
W.  I  I-.w  v.  Ma.UIoz,  81  T.  210  (16  &  W.  Rep.  877). 

»Tevis  v.  AnnMi-Miur.  71  T.  .VJ  i»  S.  W.  Rep.  134). 

*  Ellis  v.  <  ;;n  •:  s.  W.  Rep.  820). 

.  k  v.  M;niry.  /  .',  &  W.  Rep.  686> 

•Bonn-Is  v.  l.ittl-.  75  T.  316  (12  &  W.  Rep.  1109). 

'hani.-lv.  H..IMI  II.-p.  4-.M.     If  a  |,r-  .JHT  ^runn-l  f-.r  the  adoiissi 

»-vi(i»'nce  is  not  laiil   in  tli"  j.l.-a'lin-s  ohjrction  t->  its  intr.-h.  \;  Id  In- 

made  when  it  is  olF.-r.    I.     N>.  ulijci-ti-m  Ix-in^  tlx-n  iii;nl--.  a  p.irry  irill 
titl'-l  t->;t  ii.  u  trial  <>n   tin-  -round  that  its  >i<  I  mission  operated  a  surpri* 
him.     Fowler  v.  Chapman.  1  A  pp.  C.  C.,  §965. 

A  party  is  not  i-ntitli-I   t->   th.-  »>.-n«-Ht  «>f  an   ohjcctiori  t  v  of  a 

witness  wln-rr  In-  iwriiiits  an«'thi-r  witness  to  swear  to  the  same  fai-t  without 
ol.j.'rtion.     (;..  H.  ,v  s.'  \.  i;y.  «  ,,.  v   i  3          i:-p.939. 

:MrI>;inn»-ll  v.  Horr-ll.  1  I  _s.  21  T.  738L 

'Flanagan  v.  Wi.maok,  51  T.  45. 


INTRODUCTION   OF   EVIDENCE.  [§  519. 

witness  is  admissible  and  part  is  not,  a  general  objection  is  not  suf- 
ficient.1 

Courts  do  not  look  with  favor  on  objections  to  testimony  during 
the  trial  of  a  case,  taken  upon  the  ground  that  the  pleadings  are 
insufficient,  where  no  exceptions  have  been  tiled  by  the  party  ob- 
jecting; and  it  is  only  when  pleadings  are  wholly  defective,  show- 
ing no  cause  of  action,  or  no  defense,  that  objections  to  testimony 
because  of  insufficiency  of  pleadings  ought  to  be  entertained.2 
"Where  the  objection  goes  to  the  sufficiency  of  a  plea,  the  plea  must 
be  clearly  bad  on  general  demurrer.3  It  is  the  proper  practice  to 
settle  the  sufficiency  of  the  pleadings  before  going  to  trial.  If  any 
other  practice  is  encouraged,  the  parties  will  be  induced  to  go  to 
trial  on  defective  and  informal  pleadings,  after  which  it  would  be 
too  late  to  amend.  This  would  lead  to  confusion,  uncertainty,  de- 
lay and  probably  hardship.4 

§519.  Examination  of  witnesses. 

But  one  counsel  on  each  side  may  examine  and  cross-examine 
the  same  witness,  except  on  leave  granted.5  The  examination  of  a 

1  Fant  v.  Willis,  23  S.  W.  Rep.  99.  A  physician  called  as  an  expert,  in  giving 
his  opinion  upon  the  extent  of  the  injury  to  plaintiff,  testified  to  probable  re- 
sults likely  to  follow  based  upon  declarations  made  by  plaintiff  to  witness  not 
in  evidence.  No  objection  was  made,  but  defendant  by  a  charge  requested  that 
the  testimony  be  disregarded,  and  it  was.  held  that  objections  should  have  been 
made  to  the  testimony  when  offered,  and  the  instruction  was  properly  refused. 
Mo.  Pac.  Ry.  Co.  v.  Mitchell,  75  T.  77  (12  S.  W.  Rep.  810). 

Admission  of  irrelevant  and  immaterial  testimony  upon  the  part  of  the  defense 
will  not  warrant  the  introduction  in  rebuttal  of  equally  irrelevant  and  imma- 
terial testimony  on  the  part  of  the  plaintiff,  and  its  exclusion  by  the  court  is 
not  erroneous.  McCartney  v.  Martin,  1  U.  C.  143.  The  ruling  of  the  court  in 
excluding  an  answer  being  correct,  any  irregularity  in  reaching  the  result  is 
immaterial.  Etter  v.  Dugan,  1  U.  C.  175. 

When  material  facts  are  proved  and  there  is  no  conflict  in  the  testimony 
touching  them,  it  is  immaterial  that  objections  to  interrogatories  to  other 
witnesses  upon  the  same  facts  were  improperly  overruled.  Such  testimony  is 
but  cumulative.  Ft.  W.  &  D.  C.  Ry  Co.  v.  Greathouse,  83  T.  104  (17  S.  W.  Rep. 

sa  1 !. 

-  McDannell  v.  Horrell,  1  U.  C.  521. 

3  Powers  v.  Caldwell,  25  T.  852;  Pyron  v.  Butler,  27  T.  271. 

4  Booth  v.  Pickott,  53  T.  436.    In  this  case  objection  was  made  to  the  intro- 
duction of  a  judgment,  because  it  was  not  sufficiently  described  in  the  plead- 
ings of  plaintiff,  in  not  stating  the  court  or  county  in  which  it  was  rendered, 
or  that  it  was  rendered  by  any  court  having  jurisdiction.     This  want  of  cer- 
tainty would  have  been  cured  by  verdict  and  judgment,  and  hence  the  objec- 
tion was  virtually  an  effort  to  raise  on  the  introduction  of  testimony  a  question 
which  ought  to  have  been  settled  on  a  demurrer  to  the  pleading. 

Plaintiff  sued  upon  certain  drafts,  and  a  demurrer  to  his  petition  was  over- 
ruled: the  court  below  afterwards  refused  to  allow  said  drafts  to  be  introduced 
in  evidence.  This  was  error,  Green  v.  Guadalupe  Co..  2  U.  C,  34, 


§519.]  INTRODUCTION    of    •TOM 


]>arty  to  the  suit  is  conducted  and  his  testimony  is  received  under 
sime  ml.-.-;  applicable  to  other  while- 

In  the  examination  of  witnesses  and  the  manner  in  which  they 
may  be.    permitted  to  give  in  their  testimony,  soim-thing  mi. 
left  to  the  discretion  of  the  judge.3    As  a  general  rule,  the  correct 

i  a  witness  who  does  not  testily  us  an  exper 
^.  and  leave  deductions  therefrom  to  bo  drawn  by  the,  jurv.3     It 
is  not  error  to  permit  a  witness  to  testify  generallv  as  to  his  knowl- 

of  the  matters  in  issue,  without  special  interrogatorie 
p.  »int.     A       rule  of  practice  it  would  prevent  the  objection  So  often 
1,  that  a  question  is  leading.     If  the  witness  should  attempt  to 
give  illegal  testimony,  this  could  be  prevented  by  objection;  or  if 
given,  it  could  be  excluded  on  motion,  as  is  often  done.4 

A  question  propounded  to  a  witness  may  be  subject  to  objections, 
although  the  answer  may  not  mislead  the  jury  or  injure  the  oppose 
party.  A  witness  cannot  be  compelled  to  answer  "yes"  or  "no"' 
when  the  nature  of  the  question  is  not  such  as  to  make  such  an  an- 
swer  appropriate;  in  such  a  case  it  is  not  only  the  riirht  but  the 
duty  of  the  witness  so  to  answer  that  he  may  state  the  very  truth, 
and  have  the  jury  clearly  understand  his  answer.4 

It  is  not  ground  for  reversal  that  an  attorney  on  the  trial  below 
repratedl\  a>ked  questions  of  a  witness  and  withdrew  them,  stating 
as  reasons  for  such  withdrawal  that  ho  did  not  wish  any 

ground  on  which  the  judgment  might  be  reversed.  The  remarks, 
however,  wero  improper,  and  should  not  have  been  made.  If  dur- 
ing a  jury  trial  questions  to  a  witness  are  propounded,  apparently 
to  establish  things  that  did  not  exist,  or  to  which  it  was  known  the 
witness  could  not  testify,  or  to  prove  matters  in  a  mode  not  allowed 
by  law,  with  a  view  to  make  a  false  impression  on  the  jury,  such 
conduct,  if  shown  likely  to  have  influenced  the  jury,  would  be 
ground  for  reversal.8 

Tin.-  objection,  to  a  question  put  to  a  witness  not  a  party  to  the 


IToohig  v.  Elliott,  2  U.  C.  641, 

»IL  &  T.  C.  Ry.  Co.  v.  Smith,  52  T.  178. 

•  r,)|.,-  v.  Davenport,  .vj  T.  -M6. 

•ii.  <•'.  I  .  !?'.    1  S.  W.  Rep,  179).    In  a  suit  on  a  not.'  sriv.-n  for  a 
lease  of  a  n<-\w|,;ip  .r  the  defense  was  a  failure  <>f  tin-  suliM-riptimi  li-t  ; 
ferred  to  amount  t<-  th«»  sum  reprust-nlMd.  and  it  wax  h«dd  that  tin-  !••- 
asUi-d  if  h.'  had  not  t^titi.-.l  in  tli.-  justice  court  that  thr   list  \va*  worth  dollar 
for  dollar,  ini^ht  answer  that  ho  mild  it  was  ;ro...|.  without  U-invc  i-ompt-i; 

.••ally.     «.'ar|..-nt'-r  v.  Dowe,  2«i  -  n  for 

title  uiKl  |.o-H."«sii,n  of  land,  wln-n-  plaintitTmi  <  r.-s-v.,  •\aniinat  imi  isaskt-d  \\  I. 
In-  had  not  i-aiiN.-d  a  di-d  of  the  land  to  be  madt.  from  Id.-*  ulli-m-l 

iaut.  it  i-  •     n«fuse  to  allow  him  to  -tat«'  h 

(-11  r  •dir.-rt  •  vii.iination.      |  Hick^.  -,'.;   ] 

-Mo.  I'ac.  Ry.  Co.  v.  Mitcd.oll.  7'.'  T.  171   du  S.   \V.   K.  \>.    111'.     QoOMtl,  in  ex- 
amining »  witucs-:,  havo  n«j  riglit  to  read  from  a.  Ktatcun-nt  of  facts,  m  tin 


490  INTRODUCTION   OF   EVIDENCE.  [§  520. 

suit,  that  its  answer  would  tend  to  criminate  him,  must  be  made  by 
the  witness  and  not  by  counsel  for  one  of  the  parties.1 

S  520.  Leading  questions. 

The  general  rule  is  that  a  party  will  not  be  allowed  to  lead  his 
own  witness,  but  this  rule  has  exceptions.  Sometimes,  owing  to 
the  nature  of  the  inquiry,  it  would  be  difficult  to  direct  the  mind  of 
the  witness  to  the  subject  without  leading  him,  or  particularly 
specifying  the  matter  inquired  about,  and  in  such  case  it  lies  in  the 
sound  discretion  of  the  court  to  permit  a  leading  question.  The 
proper  exercise  of  such  discretion  will  not  be  reviewed.2  Interroga- 
tories pointing  to  such  facts  as  will  direct  the  attention  of  the  witness 
to  the  matters  on  which  his  testimony  is  desired  are  not  prohibited.3 
The  matter  is  largely  within  the  discretion  of  the  court,  to  permit 
leading  questions  or  not,  and  if  the  aciion  of  the  court  may  be  re- 
vised at  all,  the  record  must  show  the  circumstances  under  which 
the  question  was  allowed.4  It  is  permissible  to  lead  an  unwilling 
witness.5 

Interrogatories  may  be  so  framed  as  to  bring  out  conversations, 
even  though  they  may  be  suggestive  of  the  matters  inquired  of.6 
Thus,  in  cases  of  conversations,  admissions  or  agreements,  the  ex- 
aminer may  draw  the  witness'  attention  to  the  subject,  occasion, 
time,  place  and  person,  and  ask  whether  such  a  person  said  any- 
thing upon  the  subject  and  what  he  said.7 

The  rule  is  that  a  question  which  suggests  the  answer  desired  in 
a  matter  material  to  the  issue  should  not  be  permitted.8  But  it  is 
not  the  particular  form  of  expression  by  which  a  question  is  intro- 
duced, as  "did  or  did  not,"  etc.,  which  determines  whether  the 
question  is  leading  or  not;  but  whether  it  is  so  framed  as  to  sug- 

ing  of  the  jury,  what  purports  to  be  the  testimony  of  that  witness,  taken  in 
another  cause,  as  a  basis  for  questions  to  the  witness  as  to  what  was  his  evidence 
in  that  cause.  Pope  v.  Davenport,  52  T.  200.  The  court  comments  upon  the 
impropriety  of  permitting  an  impertinent  interrogatory,  and  the  response 
thereto,  having  no  bearing  on  any  issue  in  the  case,  and  calculated  to  prejudice 
the  jury,  to  be  read  to  the  jury.  G.,  H.  &  S.  A.  Ry.  Co.  v.  Smith,  24  S.  W.  Rep. 
668.  See  Yarborough  v.  Weaver,  6  Civ.  App.  215  (25  S.  W.  Rep.  468). 

!San  Antonio  S.  Ry.  Co.  v.  Muth,  7  Civ.  App.  443  (27  S.  W.  Rep.  752). 

'-'Eidson  v.  Saxon,  30  S.  W.  Rep.  957. 

8  Long  v.  Steiger,  8  T.  460. 

•»  Maloney  v.  Roberts,  32  T.  136;  Bergen  v.  Producers'  Marble  Yard,  72  T.  53  (11 
S.  W.  Rep.  1027). 

*Mann  v.  State,  44  T.  642. 

6  Harrison  v.  Harwood,  31  T.  650. 

7  Able  v.  Sparks,  6  T.  349.     An  interrogatory  which  refers  a  witness  to  his  pre- 
vious examination  in  the  same  suit,  and  asks  him  if  that  be  true,  is  leading,  and 
not  admissible.    Trammell  v.  McDade,  29  T.  360. 

» G.,  H.  &  S.  A.  Ry.  Co.  v.  Smith.  28  S.  W.  Rep.  110;  Able  v.  Sparks.  6  T.  349; 
Trammell  v.  McDade,  29  T.  360;  Matins  v.  Buford,  17  T.  152;  Bergen  v.  Pro  u- 
cers'  Marble  Yard,  72  T.  53  (11  S.  W.  Rep.  1027). 


-1.]  INTRODUCTION    OF    EVIDENCE. 

:  he  answer.     If  the  question  does  suggest  the  answer  <!•  -si  ro<  I, 
and  relates  to  a  matter  affecting  the  substance  of  the  issue,  an- 

ly  designed  to  lead  the  mind  of  the  witness  to  the  sin 
matter  of  the  inquiry,  it  cannot  be  put  by  a  party  t<>  his  own  wit- 
ness, except  under  circumstances  appealing  to  the  >>n  of  the 

court.1 

£  521.  Cross-examination. 

The  cross  examination  of  a  witness  may  bo  directed  to  any  mat- 
ters in  issue,2  and  is  not  confined  to  questions  propounded  and  an- 
swered on  examination  in  chief.3  But  it  is  held  that  if  a  party  asks 
questions  not  pertinent  to  the  direct  examination,  he  thereby  makes 
the  witness  his  own  to  that  extent.4  If  a  party  recalls  a  witness 
merely  for  the  purpose  of  cross-examination,  he  does  not  make  him 
his  own,  unless  he  examines  him  as  to  matters  not  called  out  in  the 
nil  examination.'  Any  fact  which  shows  bias  is  admissible, 
and  any  question  pertinent  to  the  issue  may  be  asked.'  The  wit- 
may  be  asked  questions  calculated  to  show  his  skill,  judgment, 
capacity,  attentiveness  to  duty,  etc.,  or  his  ladk  of  either  of  these 
qnalil 

It  is  proper  to  ask  a  witness  on  cross-examination  any  question 
that  may  IK-  pertinent  to  the  matter  to  be  decided  by  the  jury;  and 
any  fact  to  >h..w  a  bias  in  the  evidence  of  the  opp 

i  »le  whether  it  be  offered  by  the  examination  in  chief  or  on 

-examination.8     This  rule  is  not  confined  to  such  questions  as 

will  show  bias  of  the  witness;  for  the  purpose  of  showing  this,  or 

falsity  in  his  main  statement,  a  witness  may  be  examined  upon  col- 

The  rule  extends  to  an  examination  into  all  mat- 

-  onnected  with  the  res  gestce.     Inquiry  may  be  made  into  the 

situation  of  the  witness  in  respect  to  the  parties  and  to  the  subject 

of  litigation  —  his  interest,  his  inclinations  and  prejudices,  his  means 

of  obtaining  a  certain  and  correct  knowledge  of  the  facts  about 

which  he  testifies,  the  manner  in  which  he  uses  those  means,  his 


\  20  T.  350,  22  T.  383.    The  following  question  was  imp 

as  leading:  "Are  not  ordii.ary  animals,  such  as  are  ordinarily  ns.-d  on   : 
apt  t<»  !•••  frightened  and  n?  rvous  and  skittish  when  driven  <-n  plank  roads  and 
l.riiL  witness  answ.Tfl.  "  Yt-s."     It  \\a-t-ri  it  the  question 

and  ai,~u,  i.     Haldridge  &  Courtney  Bridge  Co.  v.  Cartrett,  75  T.  628  (13 
Rep.  81 

»RoU-rts  v.  Miller,  30  S.  W.  Rep.  381. 

»\Ventworth  v.  Crawford.  11  T.  127;  HI.  in    v.  Blake,  »  T.  840. 
7  T.  417. 

'  \V,  ntworth  v.  Crawford.  11  T.  127. 

:  (  unningham  v.  Austin  &  N.  W.  R  Co.,  31  S.  W.  Rep,  929;  Dittman  v.  Weiss, 
31  S.  \V.  1^-p.  07. 

-  \\\-ntworth  v.  Craw  ford,  11  T.  127;  Evansieh  v.  CJ.,  C.  &  S.  F.  Ry.  Co.,  61 


492  INTRODUCTION    OF    EVIDENCE.  [§521. 

power  of  discernment,  memory  and  description  may  be  fully  in- 
vestigated and  ascertained.  While  the  rule  that  only  such  evidence 
as  is  relevant  to  the  matter  in  issue  is  admissible  applies  to  the  cross- 
examination  as  well  as  the  examination,  in  chief  of  a  witness,  it  is 
not  applied  with  the  same  strictness  to  a  cross-examination.  Any 
fact  which  bears  on  the  credit  of  a  witness  is  a  relevant  fact ;  and 
this  whether  it  goes  to  his  indisposition  to  tell  the  truth,  his  Avant 
of  opportunity  to  know  the  truth,  his  bias,  interest,  want  of  mem- 
ory, or  other  like  fact.1 

A  witness  may,  on  cross-examination,  detail  all  his  knowledge  of 
the  matters  in  issue  in  response  to  a  general  request  to  do  so,  if,  in 
thus  doing,  no  improper  evidence  is  elicited.3  He  cannot  be  cross- 
examined  as  to  a  fact  which  is  collateral  and  irrelevant  to  the  issue, 
merely  for  the  purpose  of  contradicting  him.3  . 

When  a  witness  has  on  cross-examination  more  than  once  an- 
swered a  question  propounded  by  counsel,  whether  he  shall  again 
be  required  to-  make  answer  to  the  same  question  is  a  matter  within 
the  discretion  of  the  trial  judge.  The  great  object  of  the  examina- 
tion being  to  elicit  the  truth,  the  bearing,  moral  courage,  bias,  mem- 
ory and  demeanor  of  the  witness,  being  apparent,  will  furnish 
guides  for  the  discretion  of  the  judge  in  determining  the  extent  of 
the  cross-examination,  and  that  discretion  will  not  be  revised  when 
no  injury  could  have  resulted  from  its  exercise.4  Considerable  lati- 
tude should  be  allowed  to  ascertain  the  accuracy  of  the  knowledge, 
skill  and  judgment  of  a  witness  testifying  as  to  handwriting.5 

i  Evansich  v.  G,,  C,  &  S.  F.  Ry,  Co.,  61  T.  24, 

3  Rhine  v.  Blake,  59  T,  240. 

3  Dimmitt  v.  Robbins,  74  T.  441  (12  S.  W.  Rep.  94).  A  witness  may  be  inter- 
rogated on  cross-examination  as  to  statements  made  by  him  showing  his  hos- 
tility to  the  party  agaiost  whom  he  is  called,  and  if  he  deny  having  made  them 
the  statements  may  be  proved  by  other  witnesses,  A  witness  for  defendant  on 
cross-examination  denied  having  stated  "he  would  be  willing  to  swear  that 
white  was  black  and  black  was  white  in  order  to  defeat  plaintiff's  claim;"  it 
was  competent  to  prove  the  statement  by  other  witnesses,  Tex.  &  Pac,  Ry.  Co. 
v.  Brown,  78  T.  397  (14  S.  W.  Rep.  1034). 

The  counsel  for  plaintiff  in  cross-examination  asked  a  witness  a  number  of 
qu?stions  calculated  to  affect  his  credibility,  and  as  if  laying  a  predicate  to  im- 
peaoh  the  witness.  Upon  objection  some  of  the  questions  were  withdrawn.  No 
further  effort  was  made  to  impeach,  and  it  was  held  there  was  no  error  and  no 
ground  for  reversal  Texas  Standard  Oil  Co,  v,  Hanlon,  79  T.  678  (15  S.  W.  Rep. 
703). 

«  G.,  C.  <&  8.  F.  Ry.  Co.  v.  Pool,  70  T.  713  (8  S.  W,  Rep.  535).  When  an  executor 
Bought  credit  for  money  paid  out  for  attorney  fees  and  supported  the  claim  by 
his  own  testimony,  it  was  error  to  refuse  plaintiff  the  right  to  cross-examine  the 
defendant  upon  the  necessity  for  the  services  and  the  reasonableness  of  the 
charges.  Grothaus  v.  Witte,  72  T.  124  (11  S.  W.  Rep.  1032). 

s  Brown  v.  Chenoworth,  51  T.  469,  It  is  competent  on  cross-examination  to 
test  the  condition  of  the  mind  of  the  witness,  and  his  facilities  for  observing  the 
matters  of  which  he  testifies.  I,  <&  G,  N,  Ry,  Co,  v.  Dyer,  76  T.  150  (13  S,  W,  Rep. 
877), 


"23.]  INTRODUCTION   OF   EVIDENCE.  493 

?  522.  Discrediting  or  impeaching  witnesses. 

Tlie  uncontradicted  statements  of  a  witness  cannot  be  reje 
by  the  court.1    "Where  an  unirapeached  witness  states  a  fact  of  his 
own  knowledge,  it  must  be  taken  that  he  had  competent  means  of 
information  and  competent  knowledge  of  the  fact,  unless  the  con- 
trary appears.*    But  it  is  held  that  the  jury  are  not  Wind  to  be- 
lieve a  party  who,  upon  cross-examination,  testifies  to  new  u 
material  to  his  case.1    It  is  always  admissible  to  show  what  im> 
a  witness  lias  in  the  subject-matter  of  litigation.4 

AVhere  a  design  to  misrepresent,  from  some  motive  of  into1 
has  been  imputed  to  a  witness,  a  former  statement,  made  by  him 
at  a  time  when  the  supposed  motive  did  not  exist,  is  admissible  in 
confirmation  of  his  evidence.4  After  the  witness  has  testified  in 
court,  his  answers  there  made  may  be  contrasted  with  his  answers 
made  upon  the  same  subjects  in  his  depositions,  with  a  view  to  im- 
peach his  testimony."  The  statement  of  facts  made  up  by  counsel 
on  a  former  appeal  cannot  be  used  in  evidence  for  the  purpose  of 
contradicting  a  witness  on  a  subsequent  trial.7 

23.  General  rules  as  to  impeachment  of  witnesses. 
A  witness  cannot  be  impeached  or  contradicted  upon  matter  not 
material  or  relevant  to  the  issue.8    Where  evidence  tending  to  im- 
peach the  credibility  of  a  witness  is  admissible,  but  is  offered  for 
another  purpose,  if  it  be  inadmissible  to  impeach  the  credit  of  the 

1  Clark  v.  McGrath,  22  8.  W.  Rep.  527. 

2  Kottwitz  v.  Bagby,  16  T.  656. 
»  Pridgen  v.  Walker,  40  T.  135. 

« Vance  v.  Upson,  66  T.  476  (1  S,  W.  Rep.  179);  Jones  v.  McCoy,  8  T.  849i 

»  Lewy  v.  Fischl,  6-5  T.  311. 

•  Vance  v.  Upson,  66  T.  476  (1  S,  W.  Rep,  179). 

'  Sinclair  v.  Stanley,  68  T.  718  (7  S.  W,  Rep,  511),  The  answers  of  a  witness 
having  been  read  by  one  party  to  discredit  another  witness,  the  adversary  may 
introduce  in  evidence  the  further  answers  of  the  witness  tending  to  show  his 
own  temper  and  feeling  toward  the  witness  he  thus  seeks  to  discredit,  and  his 
motives  and  interest  in  a  former  prosecution  of  the  witness,  about  which  he  has 
been  interrogated.  The  inquiry  cannot  extend  beyond  the  witness*  o«rn  state- 
ment of  his  connection  with  such  prosecution.  G.,  C,  &  S,  F.  Ry.  Co*  T.  Coon, 
69  T.  730  (7  S.  W.  Rep.  492). 

It  not  appearing  that  a  party  suffered  injury  to  his  case  from  his  having  been 
fined  by  the  trial  court  for  contempt  while  being  examined  as  a  witness,  the 
act  of  the  judge  in  imposing  such  fine  upon  the  losing  party,  who  when  testify- 
ing  "  was  almost  uncontrollable  and  would  pay  no  attention  to  the  questions  of 
counsel  nor  admonitions  of  the  court,"  will  not  be  revised.  Howard  ^ 
494  (5  a  W.  Rep.il. 

»G.,  C.  &  S.  F.  By.  Co.  v.  Coon,  69  T.  730  (7  S.  W.  Rep.  493):  Dimmit  v.  Robbins, 
74  T.  441  ( !  -1  v.  Denman,  76  T.  306  (13  &  W.  Rep.  318);  Sutor 

v.  Wood.  76  T.  403  (1«  s.  \y.  K-j,.  8*1  ;  G    <    &  S.  F.  Ry.  Co.  v.  Kizxiah,  86  T.  81 
(23  S.  W.  Rep,  5:  ,:1ia  v.  Thomas.  5  Civ.  App,  663  (23  a  W.  Rep.  385, 1118); 

Tex.  &  Pac.  Ry.  Co.  v,  Woodall,  2  App,  C 


INTRODUCTION    OF   EVIDENCE.  [§  524. 

witness,  it  should  be  restricted  by  the  instructions  of  the  court  to 
the  purpose  for  which  it  was  intended.1 

The  fact  that  a  party  sued  out  a  commission  to  take  the  deposi- 
tion of  a  witness  will  not  prevent  his  impeaching  the  witness  when 
offered  by  his  adversary,  if  the  deposition  was  not  taken,  or  was 
taken  but  not  used.2  The  court  may  limit  the  number  of  impeach- 
ing and  supporting  witnesses,  as  it  may  limit  the  amount  of  mere 
cumulative  evidence  in  any  case.3 

§  624.  Impeachment  by  proot  of  reputation. 

Where  it  is  sought  to  impeach  a  witness  by  proof  of  bad  character, 
the  inquiry  should  be  confined  to  his  general  reputation  for  truth, 
and  should  not  extend  to  his  general  moral  character.  This  rule  is 
said  to  be  in  accordance  with  the  great  weight  of  authority,  Amer- 
ican and  English.4  The  inquiry  is  general,  and  proof  of  particular 
facts  is  not  permitted.  It  is  held  that  a  witness  may  know  and 
speak  as  to  another's  reputation  for  truth,  although  he  may  not 
have  heard  it  discussed,  and  does  not  know  what  a  majority  of  his 
neighbors  may  say  or  think  of  his  character  for  truth.  The  mode  of 
inquiry  recommended  is:  Whether  the  impeaching  witness  knows 
the  general  character  or  reputation  of  the  witness  to  be  impeached, 
in  point  of  truth,  among  his  neighbors?  and  if  so,  then  what  the  repu- 
tation is,  whether  good  or  bad?5  After  the  Avitness  has  thus,_p/'i//ia 
facie,  qualified  himself  to  speak  on  the  matter,  before  he  answers 
the  question  as  to  what  the  reputation  is,  the  opposite  party  should 
be  permitted  to  cross-examine  him  as  to  his  means  of  knowledge.8 
This  is  recommended  as  the  better  practice  in  all  cases,  and  where 
it  is  not  done,  if  the  witness  disqualifies  himself  on  final  cross- 
examination,  his  testimony  should  be  withdrawn.7 

The  evidence  of  witnesses,  properly  qualified,  relating  to  the  rep- 
utation for  truthfulness  and  veracity  of  a  person  of  mature  age  in 
the  community  in  which  he  formerly  lived,  is  admissible  to  impeach 
his  present  character.  Such  evidence  is  not  entitled  to  as  much 
weight  as  that  relating  to  present  reputation,  and  is  subject  to  re- 
buttal by  proof  of  present  good  reputation.8 

Where  it  is  apparent  that  the  belief  of  a  witness  is  based  upon 
his  individual  opinion  and  feelings,  and  not  upon  his  knowledge  of 

» Weir  v.  McGee,  25  T.  Sup.  20. 
2  Nichols  v.  Jones,  36  T.  44& 
"Bowles  v.  Glasgow,  2  U.  G  714 

*  Kennedy  v.  Upshaw,  66  T.  443  (1  S.  W.  Rep.  308)-,  Boon  v.  Weathered,  23  T. 
675;  Weir  v.  McGee,  25  T.  Sup.  20;  Ayers  v.  Duprey,27  T.  600. 

5  Boon  v.  Weathered,  23  T.  675;  Johnson  v.  Brown,  51  T.  65. 

6  Johnson  v.  Brown,  51  T.  65. 

7  Clapp  v.  Engledow,  27  T.  252. 

*  Myiiatt  v.  Hudson,  66  T.  66  (17  S.  W.  Rep.  396). 


-">.]  INTRODUCTION    OF    EVIDENCE.  495 

the  reputation  of  the  assailed  witness,  his  testimony  should  be  ex- 
elodi 

Where  an  attempt  has  been  made  to  impeach  a  witness,  testi- 
mony as  to  his  reputation  for  truth  and  veracity  is  proper.'  lint 
contradiction  between  witnesses  in  their  testimony  given  upon  the 
trial  of  a  cause  does  not  authorize  the  introduction  of  testimony  to 
su>tain  the  contradicted  witness  by  proof  of  general  good  char 
for  truth  and  veracity.  The  witness  must  be  attacked  before  cor- 
roboration  by  evidence  of  good  character.1 

^  525.  Impeachment  of  witness  by  proof  of  contradictory  statements. 

A  witness  may  be  impeached  by  proof  of  contradicto' 
ments  made  by  him  out  of  court,  but  the  inquiry  must  have  I 
ence  to  matters  which  are  relevant  to  the  issue.     Before  such  state- 
ments can  be  proved  it  is  necessary  to  call  the  witness*  attention  to 
them,  and  ask  him  whether  he  made  them,  at  a  certain  time  and 
place,  and  to  a  certain  person.4     In  laying  the  predicate  for  im- 
peachment, it  is  not  necessary  that  the  exact  words  suppos 
have  been  used  by  the  witness  in  making  a  former  statement  should 
be  given.     It  is  sufficient  if  the  alleged  statement  be  repeated  sub- 
stantially and  with  sufficient  distinctness  and  certainty  to  fully  call 
it  to  the  attention  of  the  witness.*    Xor  is  it  required  that  the 
exact  hour  or  day  be  stated,  but  the  time  may  be  definitely  fixed 
by  other  circumstances  with  sufficient  certainty  to  put  the  witness 
fully  upon  notice  and  guard  as  to  the  particular  transaction  or  con- 
versation in  which  the  statements  were  made.' 

If  the  witness  answers  that  he  does  not  remember  to  have  made 
the  statement  imputed  to  him.  the  better  opinion  seems  to  be  that 

1  Ayres  v.  Duprey,  27  T.  523.  In  order  to  impeach  a  witness  it  is  incompetent 
to  prove  that  several  years  ago  he  had  been  expelled  from  a  Masonic  lodge  for 
false  swearing.  Dillingham  v.  Ellis,  86  T,  447  (25  S.  W.  Rep.  618).  An  important 
witness  for  the  defense  on  cross-examination  was  required  by  the  court 
objection  by  defendant,  to  admit  that  "  he  was  a  deserter  from  the  United  States 
army."  This  was  error,  G.,  C.  &  S.  F.  Ry.  Co.  v.  Johnson.  88  T.  628  (ID  &  W. 
Rep."  151).  And  see  Moore  v.  Moore,  78  T.  882  (11  a  W.  Rep.  8W). 

»  Howard  v.  Galbraith,  80  a  W.  Rep.  689. 

» Tex.  &  Pac,  Ry.  Co.  v.  Raney,  86  T.  368  (28  &  W.  Rep.  840).  The  defendant, 
on  cross-examination  of  the  plaintiff,  called  out  matter  irrelevant  to  the  issues 
being  tried,  as  to  who  dressed  the  plaintiff's  injured  arm,  and  proceeded  to  make 
an  issue  whether  plaintiff  or  the  doctor  had  written  the  receipt  for  pay  for  the 
service.  This  constituted  an  attack  upon  the  character  of  the  plaintiff  for  truth, 
as  well  as  for  honesty,  and  the  evidence  tended  to  impeach  his  character  for 
truth.  In  such  case  it  was  competent  to  allow  supporting  testimony  of  good 
chara 

<TVx.  &  Pac.  Ry.  Co.  v.  Woodall,  3  App.  C,  C..  §  471;  Cabell  v.  Holloway.  81 

:  Smith  v.  '  Jones.  Hi  S.  W.  Rep.  306;  Weir  v.  McGee,  25  T.  Sup 
ham  v.  C'arr.  21  T.  1 J2:  .1.  &  (i.  N.  Ry.  Co.  v.  Dyer,  76  T.  150  (13  a  W.  Rej 
Mill.-r  v.  Janiu-tt. 

:]'•  S.  \V.  R«-j.. 

'-  Tox.  &  Pac,  Ry.  Co.  v.  Woodall,  2  App.  C,  O,  g 


496  INTRODUCTION   OF   EVIDENCE.  [§  525. 

it  is  competent  to  prove  the  statement  imputed  by  another  witness; 
but  if  it  should  appear,  on  inquiry,  that  the  statement  imputed  to 
the  witness  contradicts  his  evidence  in  court,  an  opportunity  must 
be  given  him  on  re-examination  to  make  any  explanation  in  his 
power  as  to  the  apparent  contradiction.1  The  fact  that  the  witness 
made  the  statements,  and  not  his  recollection  of  them,  is  the  basis 
for  their  introduction  to  impeach  him,  and  the  court  should  charge 
the  jury  as  to  the  purpose  for  which  the  testimony  is  admitted.2 

In  order  for  a  letter  written  by  a  witness  to  be  used  for  the  pur- 
pose of  impeaching  him,  his  attention  must  first  be  directed  to  it  so 
that  he  may  have  an  opportunity  to  explain  it.3 

The  rules  applicable  to  the  introduction  of  statements  made  by 
a  witness  elsewhere  contradictory  to  those  made  in  court  as  a  wit- 
ness, for  the  purpose  of  impeaching  him,  do  n-ot  apply  when  the 
witness  is  a  party  to  the  action;  for  any  statement  made  by  him 
having  a  bearing  on  the  matter  in  controversy  is  admissible  against 
him,  and  without  any  predicate ;  and  if  the  statement  be  such,  and 
so  connected  by  time,  place  and  incident,  as  to  render  it  probable 
that  it  related  to  a  matter  in  controversy,  it  may  be  admitted  to 
be  considered  by  the  jury  in  the  light  of  all  the  facts.4 

A  predicate  having  been  laid  to  attack  a  party  testifying  as  a  wit- 
ness, a  witness  called  to  impeach  him  should  not  be  allowed  to  tes- 

i  Weir  v.  McGee,  25  T.  Sup.  20;  Johnson  v.  Brown,  51  T.  65.  Where  a  witness 
testifies  by  deposition  in  regard  to  a  conversation  with  another,  and  in  response 
declares  that,  if  the  conversation  referred  to  occurred,  he  did  not  then  know  or 
recollect  it,  he  cannot  be  impeached  by  proving  by  another  the  conversation, 
the  witness  not  denying  the  matter  and  having  no  opportunity  to  explain. 
Johnson  v.  Richardson,  52  T.  481. 

*  Johnson  v.  Brown,  51  T.  65. 

SBurleson  v.  Collins,  26  S.  W.  Rep.  898;  Dooley  v.  Miller,  2  Civ.  App.  132  (21 
S.  W.  Rep.  157).  A  written  statement  made  by  a  witness  touching  the  matter 
of  his  testimony  is  competent  to  impeach  him  when  different  from  his  testi- 
mony and  his  attention  is  called  thereto.  That  counsel  attacking  the  witness 
had  obtained  the  statement  from  the  witness  was  immaterial.  Cross  v.  McKin- 
ley,  81  T.  332  (16  S.  W.  Rep.  1023).  An  agent  of  a  railroad  company,  on  the  day 
after  a  fire,  drew  up  a  statement  in  the  form  of  a  certificate,  giving  the  amount 
of  plaintiff's  goods  destroyed  while  in  the  possession  of  the  company,  etc.  The 
railroad  company  introduced  the  deposition  of  the  agent  as  to  the  same  facts. 
The  statement  was  held  admissible  evidence  to  contradict  the  deposition  in  case 
it  disagreed  with  the  statement,  and  the  attention  of  the  witness  was  called  to 
that  fact.  E.  L.  &  R  R  Ry.  Co.  v.  Hall,  64  T.  615. 

After  a  deposition  had  been  admitted  and  read,  defendant's  counsel  offered 
the  written  report  of  the  accident  that  had  been  made  by  the  witness,  to  con- 
tradict his  answers  contained  in  the  deposition.  No  predicate  had  been  laid  for 
this  impeaching  testimony,  and  the  reason  urged  in  favor  of  its  admissibility 
was  that  the  report  was  not  discovered  until  after  the  trial  had  commenced 
and  the  witness'  deposition  offered  in  evidence,  and  for  that  reason  defendant 
had  not  propounded  questions  to  the  witness  on  the  subject.  The  report  was 
clearly  inadmissible  under  the  circumstances  as  shown.  G.,  H.  &  S.  A.  Ry.  Co. 
v.  Bnggs,  4  Civ.  App.  515  (23  S.  W.  Rep.  503). 

4  Edwards  v.  Osman,  84  T.  656  (19  a  W.  Rep.  868). 


KODUCTION  en  497 

tify  to  his  conclusion  or  understanding  as  to  the  effect  of  tho 
conversations  inquired  about  in  laving  the  predicate  for  impeach- 
ment. If  the  witness  does  not  remember  what  was  said,  so  as  to 
!••  •[•«  -;it  at  K-ast  the  substance  of  the  statement,  he  should  not  be  per- 
mitted to  testify.1 

Where  the  material  testimony  of  a  witness  is  contradicted  and 
his  character  attacked,  it  is  competent  to  support  him  bv  proof  of 
other  statements  made  by  him  before  the  trial  to  the  same  effect 
us  those  made  by  him  in  the  testimony  sought  to  be  discredited.* 

^  526.  Impeachment  by  reference  to  former  testimony. 

A  witness  may  be  impeached  by  showing  that  he  testified  differ- 
ently on  a  former  trial  when  a  proper  predicate  is  laid,  but  it  would 
be  unjust  to  a  witness  to  allow  a  statement  of  facts  to  be  used  for 
such  a  purpose,  whether  it  was  agreed  to  by  counsel  or  made  up  by 
the  court.  The  charge  of  the  court  on  a  former  trial  cannot  be 
to  impeach  a  witness.3  Statements  made  under  oath  in  an- 
other proceeding  may  be  proved.4 

The  transcript  of  the  record  of  a  case,  containing  what  purports 
T<>  be  a  copy  of  the  depositions  of  a  witness,  is  not  admissible  to 
prove  that  the  witness  was  mistaken  in  saying  that  he  never 
iied  in  said  cause.     It  could  be  shown  only  by  the  production  of  tho 
depositions,  proof  of  his  handwriting  thereto,  or  by  some  one  who 
knew  the  facts.*    A  deposition  taken  in  another  case  cannot  be  used 
to  impeach  the  witness  without  first  laying  a  proper  predicir 
in  case  of  former  verbal  statements—  the  witness'  attention  mu>t 
be  directed  to  the  alleged  contradictory  statements,  so  that  he  may 
then  explain  if  he  can.' 

Where  testimony  of  a  witness  varies  on  a  material  point  from  his 
testimony  on  a  former  trial,  and  the  witness  denies  the  testimony 
imputed  to  him  on  such  former  trial,  the  court  may,  in  its  discre- 
tion, admit  a  witness  to  testify  that  such  testimony  was  given  on 
the  former  trial,  although  such  impeaching  witness  is  present  in 
court  and  not  put  under  the  rule  with  the  other  witnesses.1 

27.  Testimony  admitted  for  a  special  purpose. 
T'Mimony  admissible  for  any  purpose  or  against  any  party  to 
the  suit  should  not  be  excluded,  but  admitted  with  the  proper  hm- 


v.  M.-Anulty.  77  T.  488  (14  S.  W.  Rep.  138). 
Iley-Ooodfellow  Shoe  Co.  v.  Liberty  Ins.  Co.,  28  S.  W.  Rep.  1027. 
M.I  fcmaat  v.  Roberts,  80  T.  316  (1.1  s.  \v.  K,-j..  rWO,  1054)t 
«  Smith  v.  Tra.l.-rs'  Nat.  Hank.  74  T.  4.YT  ,1'J  S.  W.  Rep.  118X 

man  v.  Smith.  55  T 

6  Alexander  v.  Lewis.  47  T.  4*:.':  Weir  v.  M<  Sup.  20. 

•Q.,  C.  &  S.  F.  I.'N  '  '  Bui  :•  Mm,  26  a  W.  Rep.  1107.  See  Jarvis  Conkling 
Truxt  i  ...  v.  Uarr.-ll.  20  S.  W.  Rep.  447;  G.,  1L  &  £  A.  Ry.  Co.  r.  Porfert,  1 
Ap|..  716  (20  S.  W.  Rep.  870). 

n 


498  INTRODUCTION   OF   EVIDENCE.  [§  528. 

itation ;  but  the  application  of  this  rule  should  not  be  used  as  a  pre- 
text for  getting  before  the  jury  evidence  of  a  damaging  character 
to  a  party  objecting  and  having  a  right  to  object  to  its  admission, 
while  such  evidence  can  serve  no  useful  purpose  with  reference  to 
any  issue  with  another  party  against  whom  it  is  ostensibly  offered, 
and  who  is  precluded  from  making  the  objection  thereto.  Where 
such  evidence  by  deposition  has  been  admitted  ostensibly  for  one 
purpose  only,  and  by  the  charge  of  the  court  limited  to  such  pur- 
pose, it  is  error  to  permit  counsel  for  the  party  offering  it,  in  his 
argument  to  the  jury,  over  objection  of  the  other  party  (plaintiff), 
to  read  parts  of  it  and  comment  at  length  thereon  as  against  evi- 
dence offered  by  plaintiff  to  support  another  and  different  issue.1 
Admissible  evidence  will  not  be  excluded  for  the  reason  that  it 
prejudices  the  jury  against  one  of  the  parties.  When  collateral 
disclosures  can  be  excluded,  the  party  threatened  by  them  must 
act  in  his  own  behalf;  but  when  they  cannot  be  separated  from 
the  pertinent  evidence,  the  prejudiced  party  must  abide  the  con- 
sequences.2 

Where  the  trial  is  without  a  jury  and  testimony  is  admitted 
which  is  only  relevant  upon  one  of  several  issues,  the  presumption  will 
be  entertained  that  the  court  only  gave  to  the  testimony  its  proper 
consideration  so  far  as  it  was  competent.3  If  the  trial  should  be 
before  a  jury  the  purpose  of  the  testimony  should  be  restricted  by 
the  charge.4  When  evidence  is  offered  which  is  not  admissible  for 
the  general  purposes  of  the  trial,  and  exception  is  made  to  it  on  such 
ground,  if  the  exception  be  overruled  on  the  ground  that  the  tes- 
timony is  admissible  for  a  special  purpose  and  to  a  limited  extent, 
the  record  should  show  that  it  was  admitted  only  to  the  extent  and 
for  the  purpose  for  which  it  was  legitimately  admissible.5 

§  528.  Evidence  improperly  admitted  may  be  withdrawn. 
An  error  in  admitting  evidence  may  be  cured  by  a  direction  to 
the  jury  not  to  consider  such  evidence.     It  is  not  to  be  presumed 

1  Cook  v.  Land  Co.,  6  Civ.  App.  326  (25  S.  W.  Eep.  1034). 

2  Shumard  v.  Johnson,  66  T.  70  (17  S.  W.  Rep.  398). 

3  Jackson  v.  Mumford,  74  T.  104  (11  S.  W.  Rep.  1061);  Creager  v.  Douglass,  77 
T.  484  (14  S.  W.  Rep.  150). 

* Jackson  v.  Mumford,  74  T.  104  (11  S.  W.  Rep.  1061). 

5  Batte  v.  Chandler,  53  T..  613.  Where  the  court  permits  a  paper  to  be  read  to 
the  jury,  subject  to  a  charge  to  be  given,  and  none  is  given,  the  paper  is  in  evi- 
dence, and  an  assignment  of  error  in  refusing  to  admit  it  is  not  well  taken.  In- 
ternational B.  &  L.  Ass'n  v.  Fortassain,  23  S.  W.  Rep.  496. 

An  impeaching  witness  testified  to  declarations  of  an  employee  of  defendant 
damaging  to  the  cause  of  defendant.  It  was  proper  for  the  court  to  give  a  re- 
quested instruction  that  such  testimony  should  be  considered  only  as  affecting 
the  testimony  of  the  witness  attacked.  W.  U.  TeL  Co.  v.  Wingate,  6  Civ.  App. 
894  (25  S.  W.  Rep.  439). 


§  528.]  INTRODUCTION  OF  EVIDENCE.  499 

that  the  jury  will  disregard  such  express  injunction  of  the  court.1 
Objections  to  evidence  ought  to  be  made  when  the  evidence  is 
offered;  and  unless  some  good  reason  is  given  why  this  was  not 
done,  the  denial  of  a  motion  to  exclude  all  the  evidence  after  it  is 
all  in  will  not  be  revised.2  After  testimony  has  been  admitted 
without  objection,  a  motion  to  exclude  it  should  be  left  more  to  the 
discretion  of  the  judge  than  when  objections  are  made.3  The  rule 
is  that  when  illegal  evidence,  objected  to,  is  from  any  cause  heard 
by  the  jury,  the  court  should,  by  written  instruction,  distinctly  call 
their  attention  to  it  and  expressly  direct  them  to  disregard  it.4 

The  practice  of  admitting  improper  evidence  and  then  excluding 
it,  or  with  a  view  to  limiting  its  effect,  is  not  commended;  but 
whether  such. a  practice  will  require  a  reversal  must  depend  on  the 
facts  of  each  particular  case.  If  it  occurs  in  a  case  where  the  judg- 
ment is  rendered  on  conflicting  evidence,  and  a  contrary  judg1 
would  have  been  sustained  on  appeal,  and  the  evidence  withdrawn 
was  calculated  to  secure  the  verdict  and  judgment  rendered,  the 
judgment  will  be  reversed  if  it  appear  to  be  against  a  slight  pre- 
ponderance of  legal  evidence,  or  it'  the  damages  awarded  be  so  large 
as  to  raise  a  doubt  of  the  fairness  of  the  jury.5  To  authorize  a  re- 
versal it  must  be  apparent  that  the  excluded  evidence  affects  tho 
verdict.6 

Testimony  of  a  witness  given  on  direct  examination  may  be  ob- 
jected to  and  excluded  when  its  inadmissibility  is  discovered  and 
shown  on  cross-examination;7  as  where  it  develops  that  his  knowl- 
edge of  the  matter  is  hearsay.8  Where  the  judge  has  excluded  tin- 
evidence  on  objection  made,  he  is  not  required  to  refer  to  the  mat- 
ter in  the  charge  unless  requested.9 

1  Pullman  Palace  Car  Co.  v.  Booth,  28  S.  W.  Rep.  719;  Waters-Pierce  Oil  C<x  v. 
Cook,  6  Civ.  App.  573  (26  S.  W.  Rep.  96). 

2  Ft.  W.  &  R  G.  Ry.  Co.  v.  Andrews,  29  S.  W.  Rep.  920. 
»Mo.  Pac.  Ry.  Co.  v.  Lamothe,  76  T.  219  (la  a  W.  Rep.  194). 

«  McCauley  v.  Long,  01  T.  74.  It  is  the  duty  of  counsel  who  t»  •  evi- 

dence improperly  admitted  and  then  excluded  may  tend  to  prejudice  the  caae 
of  his  client  to  ask  a  specific  char^'  instructing  the  jury  to  disregard  it  Fail- 
ing to  do  this,  tin-  presumption  will  obtain  that  he  had  noappr-  iiat  it 
would  affect  tho  v.-nli.-t.  Smyth  v.  Caswell,  67  T.  567  (4  S.  W.  Rep.  848). 

»G.,  C.  &  S.  F.  Ry.  Co.  v.  Levy,  59  T.  542;  McCauley  v.  Long,  61  T.  74;  Smyth 
v.  Caswell,  67  T.  567  (4  a  W.  Rep.  848). 

«  Jones  v.  Reus,  5  Civ.  App.  628  (24  S.  W.  Rep.  674);  Mo.  Pac,  Ry.  Co.  v.  Mitchell, 
75  T.  77  (13  aw.  Rep.  810). 

'Branch  v.  Makeig,  28  &  W.  Rep.  1050. 

"Bounds  v.  Little,  75  T.  316  <!,'  s.  \\  .  Rep.  1109).  When  on  an  issue  made  by 
the  pleadings  there  is  no  evidence  to  justify  its  consideration,  it  is  th«>  duty  of 
the  judge  to  withdraw  it  from  the  jury.  Willis  v.  Whitsitt.  67  T.  «78  (4  &  W. 
Rep.  258):  Maverick  v.  Mftury,  79  T.  435  (15  a  W.  Rep.  686). 

»  Brown  v.  Bacon,  63  T.  595;  Rollins  v.  O'Farrell,  77  T.  90  (18  a  W.  Rep.  1021); 
Russell  v.  Nail,  79  T.  664  (15  a  W.  Rep.  633). 


500  INTRODUCTION  OF  EVIDENCE*  [§§  529,  530. 

§  629.  Amount  of  cumulative  evidence  may  be  limited. 

There  must  exist  in  every  court  the  power  to  determine  when 
evidence  purely  cumulative  shall  cease,  and  the  exercise  of  such  a 
discretion  is  no  ground  for  reversal  of  a  judgment  unless  it  is  made 
to  appear  that  the  discretion  was  abused.  The  power  is  one,  how- 
ever, to  be  exercised  with  the  utmost  care;  and  in  a  case  in  which 
there  is  but  little  or  no  controversy  as  to  a  given  fact,  such  evidence 
might  properly  be  cut  oif  at  a  point  where  it  would  be  improper  to 
do  so  when  the  evidence  is  greatly  conflicting.  In  a  case  in  which 
a  fact  to  be  established  is  not  sworn  to  directly  by  witnesses,  but 
must  be  established  by  proof  .of  other  facts  from  which  the  main 
fact  is  to  be  inferred,  then  evidence  of  different  facts  from  which 
the  inference  may  be  drawn  is  not  strictly  cumulative.1  The  rule 
applies  whether  the  evidence  is  offered  in  chief  or  in  rebuttal;2  or 
for  the  purpose  of  impeaching  a  witness.3 

When  the  witnesses  are  numerous  and  a  vast  accumulation  of  tes- 
timony is  to  be  expected,  and  where  the  rule  has  been  announced 
in  advance  that  merely  cumulative  evidence  will  not  be  admitted 
in  rebuttal,  it  will  not  be  regarded  error  to  adhere  to  the  rule  unless 
it  clearly  appear  that  injury  was  caused.4 

§  530.  Placing  witnesses  under  the  rule. 

It  is  the  right  of  a  party  to  have  witnesses  placed  under  the  rule 
in  civil  as  well  as  in  criminal  cases.  It  is  said  that  the  rule  is  well 
recognized  both  in  England  and  in  America ;  that  the  rule  as  laid 
down  by  Greenleaf  and  Phillips5  seems  to  be  intended  as  a  rule  in 
fact  as  well  as  in  name ;  a  definite  regulation  prescribed  by  the 
law  for  the  conduct  of  trials,  uniform  and  universal,  to  which  all 
parties  litigant  are  entitled,  subject  to  such  judicious  regulations 
confided  to  the  judge's  discretion  as  right  and  justice  exact.6  In 
a  later  case  it  is  held  that  the  enforcement  of  the  rule  is  within 
the  sound  discretion  of  the  court,  especially  where  it  is  invoked  by 
a  part  only  of  the  defendants.7 

1 G.,  H.  &  S.  A.  Ry.  Co.  v.  Matula,  79  T.  577.  Cumulative  evidence  is  additional 
evidence  of  the  same  kind  to  the  same  point.  Although  evidence  tends  to  prove 
the  same  proposition  as  that  previously  introduced,  yet  it  is  not  cumulative  if 
it  is  of  a  different  character  and  merely  tends  to  prove  the  former  proposition 
by  proof  of  a  new  and  distinct  fact.  H.  &  T.  C.  By.  Co.  v.  Forsyth,  49  T.  171. 

2  Delgado  v.  Gonzales,'28  S.  W.  Rep.  459. 

3  Bowles  v.  Glasgow,  2  U.  C.  714. 

«  Snow  v.  Starr,  75  T.  411  (12  S.  W.  Rep.  673). 

8  1  Greenl.  Ev.,  §  432;  2  Phillips  on  Ev.  395. 

6  Watts  v.  Holland.  56  T.  54. 

~  Willis  v.  Nichols,  5  Civ.  App.  154  (23  S.  W.  Rep.  1025);  Tex.  &  Pac.  Ry.  Co.  v. 
Pearl,  3  App.  C.  C.,  g  6;  Tex.  Expr.  Co.  v.  Dupree,  2  App.  C.  C.,  §  321.  And  see 
Cavasos  v.  Gonzales,  33  T.  133.  In  a  damage  suit  against  a  railroad  company,  a 
conductor  who  was  in  charge  of  the  train  was  placed  under  the  rule  with  other 
witnesses.  It  not  appearing  that  he  was  in  attendance  in  any  other  capacity 
than  as  a  witness,  the  company  had  no  just  cause  of  complaint.  G.,  C.  &  S.  F. 
Ry.  Co.  v.  Bruce,  24  S.  W.  Rep.  927. 


CHAPTER  XXXII. 

DEMURRER  TO  EVIDENCE. 

§  531.  When  and  how  taken. 
532.  Demurrer  admits  what. 

S  531.  When  and  how  taken. 

If  it  be  supposed  that  the  facts  proved  do  not  support  the  issue, 
this  being  merely  a  question  of  law,  the  defendant  may  withdraw 
it  from  the  consideration  of  the  jury  and  have  it  decided  by  the 
court,  by  demurring  to  the  evidence.1  The  opposite  partv  is  com- 
pelled to  join  in  the  demurrer  when  the  evidence  offered  is  in  writ- 
ing.1 But  when  the  evidence  is  by  parol,  and  of  a  loose  and 
indeterminate  character,  and  which  may  be  urged  with  more  or 
less  effect  to  a  jury,  and  especially  when  the  evidence  is  circum- 
stantial and  is  meant  to  conduce  to  the  proof  of  facts  beyond  the 
circumstances  proved,  the  party  is  not  obliged  to  join  in  the  de- 
murrer unless  the  demurrant  will  admit  every  fact  and  conclusion 
which  the  evidence  conduces  to  prove.  If  the  party  joins  in  de- 
murrer, neglecting  to  insist  on  these  admissions,  the  court  will  pro- 
ceed and  draw  the  same  inferences  from  the  evidence  which  the  jury 
might  have  drawn.* 

When  a  defendant  demurs  to  the  evidence  and  the  plaintiff  joins 
in  the  demurrer,  the  case  as  to  the  facts  and  the  right  of  the  plaint- 
iff to  recover  is  withdrawn  from  the  jury.  l'j>«>n  the  court  decid- 
ing for  the  plaintiff,  if  the  damages  are  unliquidated  the  que- 
of  amount  must  be  submitted  to  a  jury.  After  a  demurrer  of  de- 
fendant to  the  evidence  has  been  overruled,  he  cannot  insist  that 
the  question  of  right  to  recover  be  submitted  to  the  jury.4 

»Towner  v.  Sayre,  4  T.  28;  Mitchell  v.  Mitchell.  4  T.  283;  Hatch  v.  Garea.  7 
T.  60.     Although  it  would  be  more  appropriate  that  a  demurr  lonce 

should  be  in  writing,  there  is  no  rule  of  practice  absolutely  r«-ijuirin^  it  to  be  so 
made,  and  it  is  discretionary  with  tin-court  to  require  it  in  writing,  or  to  r- 
it  in  paroL     Hughes  v.  OirMy.  -''>  T.  -' 

JCorrect  practice  requires  that  tin-  plaintiff  shouM  join  in  a  .l.-murr.-r  • 
evidence  hy  th.-  defendant :  and  if  ho  fails  to  do  so,  the  .-ourt  should  require  it 
of  him.   But  even  if  th-  record  on  appeal  does  not  show  that  there  was  a  j- 
in  the  demurrer,  that  will  not  In?  cause  for  a  reversal  of  the  judgment  rendered 
on  it    Hughes  v.  < 'hri-ty.  •.'<;  T.  ->:\l. 

*  Booth  v.  Cotton.  1U  T 

«G.,  H.  &  &  A.  Ry.  Ca  v.  TVmpMon.  87  T.  42  (25  &  \\  \  26  &  W.  Rep. 

1066).    The  proper  practice  is  stated  1,\  the  supreme  court  as  follows:  "When  a 
demurrer  to  evidence  has  been  presented  ami  joined   in  l.y  the  opposite  party. 


502  DEMURRER   TO   EVIDENCE.  [§  532. 

§  532.  Demurrer  admits  what. 

A  demurrer  to  evidence  is  a  demurrer  to  the  competency  of  the 
evidence,  and  admits  it  to  be  sufficient  if  competent.  All,  therefore, 
that  a  judge  can  decide  upon  a  demurrer  to  evidence  is  whether  any 
competent  evidence  was  given  or  not,  and  when  there  was,  then  it 
is  error  to  sustain  the  demurrer.1  A  fact  essential  to  be  estab- 
lished in  order  to  make  out  the  plaintiff's  case,  and  to  entitle  him 
to  recover,  is  not  admitted  when  there  is  no  testimony  tending  in 
any  degree  to  prove  it.2  Ordinarily,  it  is  said,  the  office  of  a  de- 
murrer to  evidence  is  to  admit  every  fact  and  conclusion  which  the 
evidence  conduces  to  prove.3 

the  court  may  submit  the  case  to  the  jury  to  ascertain  the  damages  before  de- 
ciding upon  the  demurrer,  and  hold  the  verdict  subject  to  decision  on  the  de- 
murrer. Or  if  the  demurrer  be  decided  before  the  jury  then  impaneled  has 
been  discharged,  the  court  may  submit  the  question  of  damages  to  the  jury  that 
heard  the  evidence.  Or  the  court  may,  upon  presentation  of  the  demurrer,  dis- 
charge the  jury,  and  in  case  it  be  overruled  impanel  a  new  jury  to  assess  the 
damages.  2  Tidd's  Prac.  866;  Insurance  Co.  v.  Lewis,  1  So.  Rep.  863;  Obaugh  v. 
Finn,  4  Ark.  110;  Young  v.  Foster,  7  Port.  (Ala.)  420;  Boyd  v.  Gilchrist,  15  Ala. 
856;  Humphreys  v.  West,  3  Rand.  516.  It  is  the  better  practice,  we  think,  to 
submit  the  question  of  damages  to  the  jury  that  has  heard  the  evidence,  either 
before  or  after  decision  on  the  demurrer,  by  which  delay  and  cost  would  be 
saved  for  the  parties  to  the  action.  Whether  it  be  submitted  before  or  after  the 
decision  upon  the  demurrer  cannot  be  of  importance  nor  work  injury  to  either 
party.  It  was  not  error  to  submit  the  issue  as  to  the  amount  of  damages  to  the 
jury  then  impaneled,  after  the  demurrer  had  been  overruled." 

In  trespass  to  try  title,  where  plaintiff  demurs  to  evidence  offered  by  defend- 
ant to  support  his  plea  of  limitation,  the  court  must  decide  the  matter  wholly 
on  the  evidence  demurred  to;  and  if  there  is  evidence  tending  to  establish  the 
plea,  the  finding  must  be  for  defendant.  Thiers  v.  Holmes,  9  S.  W.  Rep.  191.  A 
motion  to  exclude  evidence  to  sustain  a  claim  for  exemplary  damages,  after  the 
party  offering  it  has  closed  his  case,  on  the  ground  that  the  evidence  is  not  suffi- 
cient to  sustain  the  plea,  is  in  the  nature  of  a  demurrer  to  evidence,  but  is  an 
irregular  proceeding,  and  it  is  not  error  to  overrule  such  a  motion.  Jacobs  v. 
Crum,  62  T.  401. 

1  Harwood  v.  Blythe,  32  T.  800. 

2  Bradbury  v.  Reed,  23  T.  258. 

a  Pitt  v.  Texas  Storage  Co.,  4  App.  C.  C.,  §  295;  Dangerfield  v.  Paschal,  11  T. 
679. 


CHAPTER  XXXIII. 


BILL  OF  EXCEPTIONS. 


533.  Exceptions    to    rulings,    when 

taken. 
534  Requisites  of  bill. 

<o  exceptions  or  bill  required, 

when. 

536.  Exceptions  required  in  certain 

cases. 

537.  Exceptions  to  admission  or  ex- 

clusion of  evidence. 


g  538.  To  be  presented  to  judge  within 
a  certain  time. 

589.  To  be  submitted  to  adverse  i 
and  filed  during  the  term. 

510.  Procedure  when  bill  found  in- 
con 

541.  Controverted  bill  of  exceptions 

and  affidavits  relating  thereto. 

542.  Where  the  trial  is  by  the  court. 


?  533.  Exceptions  to  rulings,  when  taken. 

Whenever,  in  the  progress  of  a  cause,  either  party  is  dissatisfied 
with  any  ruling,  opinion  or  other  action  of  the  court,  he  may  ex- 
cept thereto  at  the  time  the  same  is  made,  or  announced,  and  at  his 
request  time  shall  be  given  to  embody  such  exception  in  a  written 
bill.1  The  object  of  the  exception  is  to  indicate  the  objection  of  the 
party,  for  the  purpose  of  more  particularly  calling  it  to  the  atten- 
tion of  the  court,  and  of  reserving  the  question  to  be  revised,  if  it 
is  not  otherwise  presented  on  the  record.2  If  the  objection  sutli- 
ciently  appears  from  the  record  or  statement  of  facts,  no  formal 
bill  is  necessary.3  The  action  or  ruling  of  the  court  must  be  ex- 
empted to  at  the  time;  and  a  statement  in  the  record  of  the  m 
complained  of  will  not  be  considered  if  no  objection  was  made.4 

The  neglect  of  a  party  to  except  at  the  proper  stage  of  the  pro- 
ceedings deprives  him  of  all  rights  other  than  those 

1  R.  S.  1360.     It  is  usual  to  state  the  exception  at  the  time  orally,  and  r- 
it  t<>  writing  in  the  form  of  a  bill  of  exceptions  after  the  jury  have  retired  from 
the  bar.    Jones  v.  Thurmond,  5  T.  318;  Houston  v.  Jones,  4  T.  170;  Price  v.  Lauve. 
: »:  Firebaugh  v.  Ward.  51  T.  409. 
v.  Townsend,  1  T.  414. 

3  Howard  v.  North,  5  T.  290;  R.  S.  1864;  Rule  53. 

iQwftM  v.  Railway  Co.,  67  T.  679  (4  a  W.  Rep.  598).    Complaint  was  made  in 
tins  rase  that  the  judge  addressed  certain  language  to  the  jury  when  they  re- 
ported th.-y  could  not  agree.  ption  was  taken  at  tin-  time.  1-ut  tin-re 
n  the  record  a  statement  of  the  fact  that  the  language  complained  of 
was  used,  and   tm-l-T  tin-  circumstances  set  forth   in  the  ami*:' 
This  was  held  insufficient.     The  court  say:  of  a  mil  of  «-\ 
to  show  the  proceedings  of  the  court  which  do  not  otherwise  appear  of  record; 
and  the  mode  of  its  authentication  being  provided  by  law,  the  mere  »tat- 
ot  the  judge,  ult hough  written  by  him  and  nigned  officially,  cannot  be  received 
as  its  substitute. 


504  BILL   OF    EXCEPTIONS.  [§  534. 

and  his  objections,  when  urged  for  the  first  time  in  an  appellate- 
court,  will  be  heard  only  to  prevent  an  obvious  violation  of  the 
principles  of  law  and  justice.1  Exceptions  which  go  to  the  merits- 
and  foundation  of  the  action  may  be  taken  at  any  time.2  "Want  of 
jurisdiction  may  be  called  to  the  attention  of  the  appellate  court  in 
a  motion  for  a  rehearing.3 

When  no  exceptions  are  taken  to  the  conclusions  of  law,  or  to 

the  judgment,  the  only  inquiry  on  appeal  will  be  as  to  whether  the 

pleadings  authorized  the  judgment.4   But  when  exceptions  are  taken 

'  to  the  judgment,  the  findings  of  the  trial  judge  may  be  attacked 

although  not  excepted  to.5 

§534.  Requisites  of  bill;  ruling,  with  circumstances  and  evidence 
stated. 

No  particular  form  of  words  is  required  in  a  bill  of  exceptions, 
but  the  objection  to  the  ruling  or  action  of  the  court  must  be 
stated  with  such  circumstances,  or  so  much  of  the  evidence,  as  may 
be  necessary  to  explain  it,  and  no  more,  and  the  whole  as  briefly  as 
possible.6  "Where  the  statement  of  facts  contains  all  the  evidence 
requisite  to  explain  the  bill  of  exceptions,  it  will  not  be  necessary 
to  set  out  such  evidence  in  the  bill  of  exceptions,  but  it  will  be  suf- 

1  Crosby  v.  Huston,  1  T.  203. 

2  Fowler  v.  Stonum,  11  T.  478;  Coburne  v.  Poe,  40  T.  410;  Crook  v.  McGreal,  3 
T.  487. 

»  Ellis  v.  State,  3  Civ.  App.  170  (21  S.  W.  Rep.  66;  24  S.  W.  Rep.  660).  This  was 
a  proceeding  under  the  statute  of  escheats.  There  was  a  defect  in  the  citation 
as  published,  which  was  noticed  by  the  court  on  a  motion  for  a  rehearing, 'and. 
the  judgment  was  reversed. 

4  Continental  Ins.  Co.  v.  Milliken,  64  T.  46. 

»  Voigt  v.  Markle,  71  T.  78  (8  S.  W.  Rep.  623). 

6R.  S.  1361.  He  who  complains  of  an  erroneous  ruling  must  preserve  such 
evidence  of  it  in  the  record  as  will  leave  no  doubt  about  the  matter  in  the  ap- 
pellate court.  Bailey  v.  Trammell,  27  T.  317.  The  bill  should  show  what  the 
party  proposed  to  do,  and  what  the  judge  refused  to  permit  him  to  do.  Dun- 
ham v.  Forbes,  25  T.  23;  Moss  v.  Cameron,  66  T.  412  (1  S.  W.  Rep.  177).  It  must 
show  the  particular  ruling  complained  of.  Anderson  v.  Anderson.  23  T.  639.  It 
will  not  be  regarded  if  it  deals  in  general  expressions,  without  indicating  the 
point  decided.  Stephenson  v.  Bowerman,  27  T.  18.  It  should  state  the  facts  so 
as  to  exclude  any  reasonable  conclusions  of  fact  than  those  upon  which  the  de- 
cision could  be  maintained.  Sadler  v.  Anderson,  17  T.  245. 

When  objections  are  taken  to  rulings  which  do  not  ordinarily  form  part  of 
the  record,  exceptions  must  b«  taken  and  presented  by  a  bill  of  exceptions,  or 
by  the  statement  of  facts,  and  all  the  facts  and  circumstances  pertinent  to  the 
exceptions  and  necessary  to  enable  the  appellate  court  to  understand  the  question 
decided  must  be  set  forth  or  shown  by  the  record.  44  T.  406.  The  rulings  of  the 
court  objected  to  and  the  grounds  of  the  objection  must  be  stated.  But  it  is  said 
that  a  strict  compliance  with  rules  of  practice  may  sometimes  be  dispensed 
with  in  case  of  strong  equities.  Simonton  v.  Forrester,  35  T.  584. 

It  seems  that  in  taking  a  bill  of  exceptions  to  the  decision  of  a  motion  which 
involves  matters  of  fact,  the  matters  of  fact  should  be  stated,  or  it  should  be- 
stated  that  no  evidence  was  offered  respecting  the  same;  otherwise  the  presump- 


§  535.]  BILL   OF   EXCEPTIONS.  ;.n.> 

ficient  to  refer  to  the  same  as  it  appears  in  the  statement  of  facts.1 
The  bill  must  state  enough  of  the  evidence  or  facts  proved  in  the 
case  to  make  intelligible  the  ruling  of  the  court  excepted  to  in  ref- 
erence to  the  issue  made  by  the  pleading 

Clerks,  in  milking  out  the  transcript,  are  prohibited  from  copy- 
ing as  a  part  of  the  bill  of  exceptions  any  instrument  in  writing,. 
or  document  not  originally  inserted  therein,  but  merely  referred  to 
and  directed  to  be  copied  from  some  other  paper  in  the  case.1  The 
dork  is  not  permitted  to  copy  into  the  blanks  left  in  a  bill  of  ex- 
ceptions the  indorsements  on  a  note  sued  on.4 

§  635.  No  exceptions  or  bill  required,  when. 

The  ruling  of  the  court  in  the  giving,  refusing  or  qualifying  of 
instructions  to  the  jury  is  regarded  as  excepted  to  in  all  cases.* 
Where  the  ruling  or  other  action  of  the  court  appears  otherwise  of 

tion  will  be  that  such  evidence  was  offered,  and  in  the  absence  thereof  the  de- 
cision cannot  be  revised  Ponton  v.  Bellows,  13  T.  254. 

The  failure  to  state  the  grounds  of  objection  to  the  admission  of  evidence  may- 
have  an  important  bearing  in  determining  the  correctness  of  the  court's  ruling 
in  any  particular  case,  but  is  not  a  reason  for  striking  out  the  bill  Heffron  v, 
Pollard,  78  T.  96  (11  S.  W.  Rep.  165). 

1  R  S.  1362.     Where  there  is  a  conflict  between  the  bill  of  exceptions  and  the- 
statement  of  facts,  the  latter  must  prevail    G.,  H.  &  S.  A,  Ry.  Co.  v.  P&r> 
Civ.  App.  150.    But  it  is  also  held  that  where  the  testimony  set  out  in  a  state- 
ment of  facts  conflicts  with  the  recitals  in  a  bill  of  exceptions,  both  signed  and 
agreed  upon  by  the  attorneys  and  approved  by  the  judge,  that  feature  of  the 
record  should  prevail  which  tends  to  support  the  judgment.    Byers  v.  Wallace. 
25  S.  W.  Rep.  104a     And  see,  also,  Ramsey  v.  Hurley,  72  T.  194  (12  a  W.  Rep.  56). 

When  evidence  incorporated  in  a  statement  of  facts  does  not  appear  th 
to  have  been  objected  to,  but  the  bill  of  exceptions  shows  that  an  exception  was 
reserved,  they  may  be  taken  together  as  constituting  the  bill  of  exceptions  on 
the  particular  matters.  Heffron  v.  Pollard,  73  T.  96  <11  S.  W.  Rep.  165).  When* 
counsel  do  not  agree  upon  a  statement  of  facts,  and  the  statement  is  prepared 
by  the  judge,  and  it  is  inconsistent  with  a  bill  of  exceptions  touching  n>a 

ted  to,  the  bill  of  exceptions  will  be  looked  to;  other  \vi-e  tin-  court  might 
deprive  a  party  of  a  bill  of  exceptions  properly  taken  and  signed.  McClelland 
v.  Fallen,  74  T.  236  (12  S.  W.  Rep.  60). 

2  Rule  59.     Where  an  instrument  answers  the  purpose  of  a  statement  of  fact* 
and  a  bill  of  exceptions  to  the  exclusion  of  evidence,  an  exception  th.  r.  M 
tained  will  not  be  barred  from  review  because  not  preserved  in  a  separate  bill. 
Int.  Hldg.  &  L.  Ass'n  v.  Hardy,  26  S.  W.  Rep 

«  Rule  86. 

« Spark-,  v  Texas  Loan  Agency,  19  S.  W.  Rep.  258. 

SR  a  1318,  1320.  1863.     The  charges  given  und  refu-.. ,i  l,v  the  ,-,,.irt   -houl.l 
not  be  made  a  part  of  the  bill  of  exceptions.     Rule  :>4.     No  bill  of  exoej 
need  be  taken  to  a  charge  of  the  court  in  order  to  -,.  .-nre  the  action  <>f  the  ap 
p -llatp  court  thereon  regarding  any  errors  it  may  contain.     ^  *'<x  v. 

Kdsall.  63  T.  66M.     The   gpncnil   ch.i'  l>y   the   court,  and  the    SJH-,  ial  in- 

structions asked  by  counsel,  whether  ^iven  or  refused,  are  tiled  with  tli' 
an  1  In-come  a  part  of  the  record,  and  the  action  of  the  court  will  U>  r. 
without  the  necessity  of  a  bill  of  exceptions.     R.  S.  131H.  1320;  Landes 


;,<  '0  BILL   OF   EXCEPTIONS.  [§  536. 

record,  no  bill  of  exceptions  is  necessary  to  reserve  an  exception 
thereto.1  A  rule  provides  that  there  shall  be  no  bills  of  exception 
taken  to  the  judgments  of  the  court  rendered  upon  those  matters 
•which  at  common  law  constitute  the  record  proper  in  the  case,  as 
the  citation,  petition,  answer,  and  their  supplements  and  amend- 
ments, and  motions  for  new  trial,  or  in  arrest  of  judgment,  and  final 
judgment.2 

§  636.  Exceptions  required  in  certain  cases. 

Exceptions  to  pleadings  not  disposed  of  before  proceeding  to  a 
trial  of  the  facts  are  deemed  waived,  and  constitute  no  part  of  the 
final  record,  unless  some  question  be  raised  upon  the  action  of  the 
court  in  reference  to  them,  and  they  are  presented  in  a  bill  of  ex- 
ceptions.3 

The  rulings  of  the  court  upon  applications  for  continuance  and 
for  change  of  venue,  and  other  incidental  motions,4  and  upon  the 

berger,  2  App.  C.  C.,  §  135;  Mo.  Pac.  Ry.  Co.  v.  Martin,  2  App.  C.  C.,  §  656.  The 
<;ourt  may  give  a  verbal  charge,  and  in  such  case  exceptions  must  be  saved  by 
bill  of  exceptions.  G.,  C.  &  S.  F.  Ry.  Co.  v.  Holt.  1  App.  C.  C.,  §  835.  It  must  be 
«hown  by  the  record  that  a  charge  asked  was  given  or  refused.  A  statement  of 
counsel  found  in  the  record  on  motion  for  new  trial  is  not  sufficient  (Hodde  v. 
Susan,  63  T.  308);  the  file  mark  of  the  clerk  indicates  nothing  with  reference  to 
the  matter.  Michael  v.  Yoakum,  3  S.  W.  Rep.  1076. 

!R.  S.  1364.  Questions  to  be  revised,  if  not  otherwise  apparent,  must  be 
presented  by  a  bill  of  exceptions,  or  arise  out  of  a  statement  of  facts.  None 
•others  will  be  considered.  Secrest  v.  Townsend,  1  T.  414.  When  there  is  neither 
a  statement  of  facts,  bill  of  exceptions,  or  any  error  disclosed  by  the  record,  it 
will  be  presumed  that  the  verdict  and  judgment  were  rendered  upon  sufficient 
legal  testimony.  Jones  v.  Black,  1  T.  527:  Kirkman  v.  Snively,  2  T.  447;  Duf- 
field  v.  Bodine,  2  T.  292.  An  error  apparent  on  the  record  may  be  revised  and 
corrected  though  not  presented  by  a  bill  of  exceptions  or  statement  of  facts. 
Crook  v.  McGreal,  3  T.  487.  • 

2  Rule  53. 

3  Rule  26;  Hooker  v.  Williamson,  60  T.  524;  Huddleston  v.  Kempner,  1  Civ. 
App.  211  (21  S.  W.  Rep.  946);  A.,  T.  &  S.  F.  Ry.  Co.  v.  Emerson,  24  S.  W.  Rep.  1105. 
There  can  be  no  review  on  appeal  of  error  assigned  in  overruling  a  plea  where 
the  record  shows  no  exception  taken  to  the  ruling.     Equitable  Mortg.  Co.  v. 
Thorn,  26  S.  W.  Rep.  276.     On  an  assignment  of  error  in  the  overruling  of  ex- 
ceptions to  the  petition,  the  record  must  show  some  action  thereon  by  the 
trial  court.     Hobson  v.  Schoelkopf,  27  S.  W.  Rep.  283. 

Where  a  petition  is  good  on  general  demurrer,  specific  objections  set  forth  in 
a  bill  of  exceptions  cannot,  on  appeal,  be  made  to  answer  the  purpose  of  special 
exceptions  not  urged  in  the  trial  court.  St.  L.,  A.  &  T.  Ry.  Co.  v.  Turner,  1  Civ. 
App.  625  (20  S.  W.  Rep.  1008).  The  record  not  showing  that  demurrers  insisted 
upon  on  appeal  were  called  to  the  attention  of  the  court,  it  will  be  held  that 
they  were  waived.  Chambers  v.  Ker,  6  Civ.  App.  373  (24  S.  W.  Rep.  1118).  Error 
in  sustaining  a  plea  of  privilege  must  be  saved  by  exception.  Pfeuffer  v.  Burns, 
•24  S.  W.  Rep.  36. 

4  Rules  55,  70.     Error  in  refusing  a  continuance  must  be  shown  by  bill  of  ex- 
•ceptions.    Tex.  &  Pac.  Ry.  Co.  v.  McAllister,  59  T.  349;  G.,  C.  &  S.  F.  Ry.  Co.  v. 
Carter,  25  S.  W.  Rep.  1023;  G.,  C.  &  S.  F.  Ry.  Co.  v.  Cannon,  29  S.  W.  Rep.  689; 


§536.]  BILL   OF  EXCEPTIONS.  .'.  "7 

admission  or  rejection  of  evidence,  and  upon  other  proceedings  in 
the  case  not  embraced  in  rules  53  and  54,'  when  sought  to  be  com- 
plained of  as  erroneous,  must  be  presented  in  a  bill  of  exceptions 
>1  by  the  judge  and  tiled  by  the  clerk,  or  otherwise  made  ac- 
o.rdini:  to  the  statute,  and  they  will  thereby  become  a  part  of  the 
record  of  the  cause,  and  not  otherwise.2  Kvery  ruling  of  the  trial 
<-ourt  made  a  Around  of  error  should  plainly  appear  in  the  trun- 
r.  and  nothing  be  left  to  inference.  All  rulings  save  those  par- 
ticularly excepted  by  the  above  rule,  upon  incidental  motions,  as  a 
refusal  by  the  trial  judge  to  give  his  conclusions  of  law  and  fa<  t, 
must  be  made  the  subject  of  a  bill  of  exceptions,  or  they  will  be 
considered  as  waived.3 

The  court  will  presume  that  the  bill  of  exceptions  gives  the  objec- 
-  and  rulings  as  they  were  made.     And  where  the  objection  on 
•which  evidence  was  excluded  was  not  sufficient,  the  court  will  not 
-  ime  that  there  were  other  valid  objections.4 

Morris  v.  Files,  40  T.  374;  Bruckrailler  v.  Wolf,  37  T.  342.  The  affidavit  on  which 
the  motion  fora  continuance  was  based  should  ordinarily  U-  s-t  nut  in  the  bill  of 
exceptions  (Bruckmiller  v.  Wolf.  37  T.  :U-,'i:  hut  it  should  not  be  incorporated 
into  the  transcript,  especially  when  no  proper  exception  has  been  tak-  i:  Its 
proper  place  is  in  the  bill.  Morris  v.  Files,  40  T.  374.  Tl»»- •••nirt-  rk-tly 

t<>  the  rule,  and  require  exceptions  to  be  taken  to  the  ruling  of  the  court  and 
presented  in  a  proper  bill.     Tex.  &  Pac,  Ry.  Co.  v.  Mallon,  85  T.  1 1  '>:  Tex.  &  Pac, 
o.  v.  Dunn,  17  S.  W.  Rep.  822;  Strain  v.  Greer,  19  a  W.  Rep.  513;  Waites  v. 
Osborne,  66  T.  648  (2  &  W.  Rep.  665).     That  the  order  of  the  <-«-urt  overruling  the 
<n  is  entered  in  the  minutes,  and  the  exception  therein  noted,  is  not  suffl- 
rit-nt  to  make  the  application  a  part  of  the  record.    Tex.  &  Pac.  Ry.  Co.  T.  Mal- 
lon, 65  T.  115.    The  bill  should  show  the  grounds  on  which  the  motion  was 
refused.    Tex.  &  Pac,  Ry.  Co.  v.  Hard  in.  »VJ  T.  367. 

The  reasons  for  overruling  an  application  to  change  the  venue  should  appear 
by  a  bill  of  exceptions.  Hobbs  v.  State,  40  T.  353. 

i  See  §  535,  supra. 

-  Hule  55. 

'Sup.  Com'd'y  Knights  of  Golden  Rule  v.  Rose,  62  T.  321.  Error  in  overruling 
a  motion  to  suppress  depositions  must  be  presented  by  bill  of  exceptions  (Tex. 
&  Pac.  Ry.  Co.  v.  Evans,  'J  1 ".  »  '.:;!*>;  also  error  in  overruling  a  motion  to  reform 
a  judgment  Adams  v.  Duggan,  1  App.  C.  C..  ;;  1268. 

It  must  be  shown  by  a  bill  of  exceptions  what  was  done  where  error  is  claimed 
in  the  refusal  of  the  court  to  charge  upon  an  inquiry  made  by  the  jury:  an  aflV- 

filed  with  a  motion  for  a  new  trial  is  not  sufficient.     Taylor  v.  I>.f 
&  W.  Rep.  f'4J.     Krror  in  recalling  a  witness  after  the  jur\ 
saved  by  bill  of  exceptions  i  Martin  Brown  Co.  v.  Wainscott.  66  T.  181.  1  a  W. 
Rep.  264);  or  in  refusing  to  postpone  a  cause  (Moss  v.  Katz,  *»  T.  411. «?  s.  \v. 
Rep.  764);  or  in  permitting  a  witness  to  testify  as  an  expert  without  a  showing 
that  he  was  qualified.     In  su.-h  a  < -as*'  th»- 1, ill  should  show  that  an  examination 
was  made  touchim:  his  qualitu-ations,  or  that  none  was  made.     Hardin  v.  Spark*, 
70  T.  429  (7  a  W.  Rep.  769>. 

In  the  absence  of  proper  exceptions  or  statement  of  facts,  unless  the  failure 
to  except  be  waived  or  not  insisted  upon,  the  only  inquiry  will  U-  whether  the 
pleadings  justify  the  judgment.  Crawford  v.  Mobility.  11  s.  \V.  IU»p,  1091 

• Oppenheimer  v.  Robinson,  87  T.  174  (27  a  W.  Rep.  93). 


508  BILL   OF   EXCEPTIONS.  [§  537* 

A  motion  for  a  new  trial  cannot  take  the  place  of  a  bill  of  excep- 
tions.1 

§  637.  Exceptions  to  admission  or  exclusion  of  evidence. 

Rulings  of  the  court  on  the  admission  or  rejection  of  evidence 
must  be  presented  by  a  bill  of  exceptions.2  Exceptions  to  evidence 
admitted  over  objections  made  to  it  on  the  trial  may  be  embraced  in 
the  statement  of  facts,  in  connection  with  the  evidence  objected  to, 
provided  the  statement  of  facts  be  presented  to  the  judge  within  the 
time  allowed  for  presenting  bills  of  exceptions,  and  be  filed  in  term 
time.3 

1  Ballew  v.  Casey,  9  S.  W.  Rep.  189. 

2  Rule  55;  Yeiser  v.  Burdett,  29  S.  W.  Rep.  912.    The  ruling  of  the  court  must 
be  excepted  to  at  the  time.    Collins  v.  Bank,  75  T.  254  (11  S.  W.  Rep.  1053);  First 
Nat  Bank  of  Greenville  v.  Pennington,  75  T.  272  (12  S.  W.  Rep.  1114)  \  Watson 
v.  Blymer  Mfg.  Co.,  66  T.  558  (2  S.  W.  Rep.  353):  Ford  v.  Cowan,  64  T.  129:  Mo 
Faddin  v.  Prater,  3  S.  W.  Rep.  306;  Ballew  v.  Casey,  9  S.  W.  Rep.  189;  Still  v. 
Focke,  66  T.  715  (2  S.  W.  Rep.  59);  Tex.  &  Pac.  Ry.  Co.  v.  Barren,  4  Civ.  App. 
546  (23  S.  W.  Rep.  537):  G..  H.  &  S.  A.  Ry.  Co.  v.  Herring,  24  S.  W.  Rep.  939;  G., 
H.  &  S.  A.  Ry.  Co.  v.  McMonigal,  25  S.  W.  Rep.  341. 

3  Rule  56.    Though  exceptions  to  the  action  of  the  court  can  be  as  well  saved 
in  the  statement  of  facts  as  in  the  bill  of  exceptions,  yet  when  a  party  resorts 
to  this  method  of  making  a  record  of  his  objections  to  the  rulings  of  the  court 
below,  he  must  follow  the  rules  prescribed  for  bills  of  exceptions  as  to  time 
of  filing.    Howard  v.  Mayor  of  Houston,  59  T.  76;  Lockett  v.  Schurenberg,  60  T. 
610. 

A  bill  of  exceptions  to  the  exclusion  of  evidence  should  show  that  the  evi- 
dence was  excluded,  and  upon  what  objection,  and  that  exception  was  taken  to 
its  exclusion.  Fox  v.  Brady,  1  Civ.  App.  590  (20  S.  W.  Rep.  1024).  It  should 
show  the  nature  of  the  evidence  admitted  or  excluded  over  objection;  it  must 
show  what  the  testimony  was  or  would  have  been,  or  what  was  proposed  to 
be  proved  by  the  witness.  R.  S.  1361 ;  G.,  C.  &  S.  F.  Ry.  Co.  v.  Day,  22  S.  W. 
Rep.  772;  Neal  v.  Minor,  26  S.  W.  Rep.  882;  Brothers  v.  Mundell,  60  T.  240;  Bee- 
man  v.  Jester,  62  T.  431 ;  Milliken  v.  Smoot,  64  T.  171 ;  Moss  v.  Cameron,  66  T. 
412  (1  S.  W.  Rep.  177):  Jacoby  v.  Brigman,  7  S.  W.  Rep.  366;  McKay  v.  Overton. 
65  T.  82;  Heirs  of  Reddin  v.  Smith,  65  T.  115;  Beeks  v.  Odum,  70  T.  183  (7  S.  W. 
Rep.  702);  Sabine  &  E.  T.  Ry.  Co.  v.  Johnson,  7  S.  W.  Rep.  378.  To  entitle  one 
to  a  revision  of  the  ruling  of  the  court  below  on  the  admission  or  rejection  of 
evidence,  the  matter  must  be  so  presented  by  bill  of  exceptions,  filed  in  proper 
time,  as  to  enable  the  court  to  fully  understand  and  know  all  the  facts  on  which 
the  correctness  or  error  of  the  ruling  depends.  Whitaker  v.  Gee,  61  T.  217. 
When  tke  record  shows  no  statement  of  facts  from  which  the  materiality  of 
excluded  testimony  can  be  determined,  and  the  bill  of  exceptions  based  on  such 
exclusion  fails  to  state  enough  of  the  facts  established  in  the  case  to  make  in- 
telligible the  ruling  of  the  court  in  reference  to  the  issue  made  by  the  pleadings. 
the  exception  will  be  disregarded  on  appeal.  Stark  v.  Ellis,  69  T.  543  (7  S.  W. 
Rep.  76).  If  the  statement  of  facts  contains  ail  the  evidence  necessary  to  explain 
the  bill  of  exceptions,  it  may  be  referred  to  as  it  appears  therein  without  the 
necessity  of  setting  it  out  in  the  bill  of  exceptions.  R.  S.  1362. 

When  neither  the  bill  of  exceptions  nor  statement  of  facts  shows  what  an- 
swar  was  given  to  a  question  claimed  to  have  been  improper,  the  point  will  not 
be  considered  on  appeal.  Haney  v.  Clark,  65  T.  93.  If  complaint  be  made  that  a 
question  was  improperly  excluded,  the  bill  ought  to  show  what  the  answer  of  the 


IS.]  BILL  ..h  ;,,,;» 

The  court,  when  deonu-d  necessary,  may  call  upon  tin;  \ 
fering  evidence  to  explain  the  object  of  its  admission,  ami  also  upon 
the  party  excepting  the  reason  of  his  exceptions,  \vhich,  when  done 
in  either  or  both  cases,  may  form  a  part  of  the  bill  • 
Objections  made  to  evidence  must  be  stated  in  the  bill  of  e\<-"| 
taken  to  its  admission  or  exclusion.2    A  memorandum  of  the  point 
ruled  on  must  ho  made  hy  the  judge  when  he  decides  an  exception 
t»>  the  admission  or  exclusion  of  evidence,  if  a  bill  of  exceptions  is 
not  then  prepared  and  signed,  which  ordinarily  should  U-  done.1 

•  3.  To  be  presented  to  judge  within  a  certain  time. 
It  is  the  duty  of  a  party  taking  a  bill  of  exceptions  to  reduce  it 
riting,  and  present  it  to  the  judge  for  his  allowance  and  signa- 
ture during  the  term,  and  within  ten  days  after  the  conclusion  of 
the  trial.*    Where  exception  to  a  ruling  is  necessary  to  authorize  a 

witness  would  have  been,  or  at  least  what  it  would  have  tended  to  prove.  Mo- 
Auley  v.  Harris  71  T.  631  (9  S.  W.  Rep.  679);  G.,  C.  &  S.  F.  Ry.  Co.  v.  I>K •;.. 

I  (14  a  W.  Rep.  611);  Cheek  v.  Herndon,  82  T.  146  (17  a  W.  Rep.  76* 
phenson  v.  Stephenson,  6  Civ.  App.  529  (25  S.  W.  Rep.  649);  W.  U.  Tel.  Co.  v.  Hill. 
26  S.  W.  R«'i>.  'JV,1.     If  it  can  be  seen  that  the  question  was  pro|>er.  the  action  of 
the  court  in  not  requiring  the  witness  to  answer  will  be  reviewed,  although  the 
bill  of  exceptions  does  not  show  what  the  answer  would  have  been.    Brown  \. 
Wilson.  20  S.  W.  Rep.  530.    Where  the  bill  of  exceptions  does  not  shou 
inony  upon  which  the  action  of  the  court  in  overruling  a  special  plea  was  baaed, 
the  ruling  will  not  be  revised.    Cadwallader  v.  Lovece,  29  S.  W.  Rep.  660. 

JRu! 

2  Rule  58.    The  bill  must  show  the  objection  made  to  the  admission  or  > 
sion  of  evidence.    Every  presumption  is  in  favor  of  the  correctness  of  the  ruling 
of  the  trial  court.    N.  Y.  &  Tex.  Steamship  Co.  v.  Boating  As- 
490  (21  S.  W.  Rep.  1007);  Calhoun  v.  Quinn,  21  S.  W.  Rep.  705;  G.f  C.  &  S. 

A  land.  •->:{  S.  W.  Rep.  421;  Davis  v.  Wheeler.  23  a  W.  Tex.  &  P. 

Coal  Co.  v.  Lawson,  31  S.  \V.  Rep.  843;  EL  &  T.  C.  Ry.  Co.  v.  Williams,  31  a  W. 
Rep.  556;  Underwood  v.  Coolgrove,  59  T.  164;  Endick  v.  Endick,  61  T.  559;  G..  H. 
&  a  A,  Ry.  Co.  v.  Gage,  63  T.  568;  Fox  v.  Brady,  1  Civ.  App.  590  (30  a  W.  Rep. 
It  is  held  that  both  the  bill  of  exceptions  and  the  brief  of  appellant 
should  show  the  objection  made  and  sustained.  Johnson  v.  Crawl,  55  T.  ~>?l. 
Where  the  objection  stated  is  not  suHi.-i.-nt.  the  court  will  not  presum- 
there  were  other  objections  that  might  have  been  made.  ()|>|«.-nh.Mtner  v.  Rob- 
inson, H7  T.  174  rJ7  S.  \V.  Rep.  95).  The  appellate  court  will  not  resort  to  con- 
jecture  to  determine  the  grounds  on  which  objection  to  exrlud.  ••  was 

made.    If  the  objection  was  a  general  one.  the  bill  of  exceptions  annul 
show  the  grounds  on  which  the  judge  based  his  ruling.     Krankl.  .in,  63 

Hut  it  is  said  that  where  appellant  complains  of  the  «-\ 

dence,  but  fails  to  show  the  objections  made,  the  appellate  court  will  presume 
that  the  objections  were  meritorious,  although  mi  its  fa<-«-  the  in- -non  appears 
unobjectionable.  Higgar  v.  1.  S.  W.  Rep.  707;  Neal  v.  Minor.  36  a  W. 

\Vhrrn  no  objection  is  >tated,  no  ground  will  be  entertained  in  revis- 
ing the  trial  court,  unless  it  relate  to  tli  y  and  compel-  .••  evi- 
dence offered.     Stiles  v.  Giddens,  21  T.  78-3;  Willis  v.  Dona                 0ft     If  the 
object  ii  .n  was  general,  and  for  no  cause  stated,  the  bill  should  so  specify.   1 
v.  Ferryman,  59  T.  1U4. 

»  Rule  60. 

*  R.  a  1365. 


510  BILL   OF   EXCEPTIONS.  [§  539^ 

party  to  assign  error  upon  it,  exception,  must  be  taken  and  the 
point  saved  at  the  time  the  ruling  complained  of  is  made.  By  consent 
of  the  court  the  bill  of  exceptions  may  be  drawn  and  signed  at  any 
time  during  the  term.  It  is  not  enough  to  object  to  or  oppose  a 
ruling  when  it  is  made,  but  the  party  must  manifest  his  objection 
so  as  to  notify  the  court  of  his  desire  that  it  should  become  a  mat- 
ter of  record  by  bill  of  exception.1 

The  statute  is  construed  to  mean  that  the  presentation  may  b& 
made  within  ten  days  after  the  date  of  the  entry  of  an  order  over- 
ruling a  motion  for  a  new  trial.  In  contemplation  of  the  statute,. 
the  overruling  a  motion  for  a  new  trial  is  the  conclusion  of  the 
trial.2  Bills  of  exception  which  have  not  been  presented  to  the 
district  judge  for  signature  within  ten  days  after  motion  for  a  new 
trial  has  been  refused  will  on  motion  be  stricken  from  the  record 
in  the  appellate  court.  But  if  the  statement  of  facts  containing^ 
bills  of  exception  to  the  admission  of  proper  evidence  was  signed 
and  approved  during  the  term  and  within  ten  days  after  the  end 
of  the  trial,  the  bills  of  exception  would  be  considered.  It  would 
be  otherwise  if  such  statement  of  facts  was  presented  to  the  judge 
more  than  ten  days  after  the  conclusion  of  the  trial.3 

Bills  of  exceptions  must  be  approved  by  the  judge ;  *  otherwise" 
they,  with  the  assignments  of  error,  will  be  ignored.5  A  bill  of  ex- 
ceptions to  the  rulings  of  the  master  must  be  approved  by  the 
court ;  approval  by  the  master  alone  is  not  sufficient.6 

§  639.  To  be  submitted  to  adverse  party,  and  filed  during  the  term. 

It  is  the  duty  of  the  judge  to  submit  the  bill  of  exceptions  to  the- 

adverse  party  or  his  counsel,  if  in  attendance  on  the  court,  and  if 

1  Price  v.  Lauve,  49  T.  74. 

2  S.  &  E.  T.  Ry.  Co.  v.  Joachirni,  58  T.  452;  Ellis  v.  Ellis,  5  Civ.  App.  46  (23  S.  W. 
Rep.  996);  Int  Bldg.  &  L.  Ass'n  v.  Hardy,  26  S.  W.  Rep.  523;  Saul  v.  Frame,  5 
Civ.  App.  596  (22  S.  W.  Rep.  984). 

8  Blum  v.  Shram,  58  T.  524;  Saul  v.  Frame,  3  Civ.  App.  596  (22  S.  "W.  Rep.  984), 
Where  a  statement  of  facts  which  contained  bills  of  exception  was  filed  more 
than  ten  days  after  the  motion  for  a  new  trial  was  granted,  though  before  the 
close  of  the  term  of  court,  it  was  held  that  the  record  being  silent  as  to  when 
the  bills  of  exception  were  presented  to  the  trial  judge,  the  presumption  would 
be  indulged  that  they  were  presented  within  ten  days  after  the  trial  was  con- 
cluded. Heffron  v.  Pollard,  73  T.  96  (11  S.  W.  Rep.  165). 

A  bill  of  exceptions  having  been  taken  at  the  time  of  the  ruling,  and  coun- 
sel excepting  having  left  the  county  before  the  bill  was  signed  and  filed,  it  was 
competent  for  the  trial  judge,  when  requested  by  telegram  from  the  absent 
counsel,  to  prepare,  certify  and  file  the  bill  of  exceptions.  Doll  v.  Mundine,  84 
T.  315  (19  S.  W.  Rep.  394). 

4  Durham  v.  Atwell,  27  S.  W.  Rep.  316. 

5Clitus  v.  Langford,  24  S.  W.  Rep.  325. 

6  Ballard  v.  McMillan,  5  Civ.  App.  679  (25  S.  W.  Rep.  327).  A  bill  which  does 
not  appear  to  have  been  filed  among  the  papers  of  the  case  nor  called  to  the 
attention  of  the  court  will  not  be  considered.  Spencer  v.  James,  31  S.  W.  Rep. 
540. 


§  540.]  BILL   OF   EXCEPTIONS.  .',  1  I 

the  same  is  found  to  be  correct,  it  must  be  signed  bv  the  judge 
without  delay  and  til«»d  with  the  clerk  during  the  term.1  A  bill  of 
exceptions  filed  after  the  close  of  the  term  will  not  be  considered.* 
The  rule  applies  where  the  bill  of  exceptions  is  included  in  the 
statement  of  facts;*  an  order  of  court  will  not  make  valid  a  tiling 
of  the  statement  of  facts  after  the  term.4  The  requirement  of  the 
statute  cannot  be  waived.5 

It  is  the  duty  of  a  party  bringing  a  cause  to  the  appellate  court 
to  see  to  its  proper  preparation  for  an  appeal ;  and  where  the  rec- 
«»,l  does  not  disclose  that  it  was  through  the  fault  of  the  trial  judge 
or  of  the  opposite  party  that  appellant's  bills  of  exception  were  not 
filed  within  the  time  prescribed  by  la\v,  the  presumption  as  to  neg- 
ligence is  against  the  appellant,  and  he  cannot  complain  if  his  bills 
are  not  legally  before  the  appellate  court.' 

§  540.  Procedure  when  bill  found  incorrect. 

Should  the  judge,  when  the  bill  is  presented  to  him,  find  it  to  be 
incorrect,  he  must  suggest  to  the  party  or  his  counsel  who  dn 
such  corrections  as  he  may  deem  necessary,  and  if  they  are  agreed 
to  he  must  make  such  corrections  and  sign  and  tile  the  bill  during 
the  term.  Should  the  party  not  agree  to  such  corrections,  the  judge 
must  return  the  bill  of  exceptions  to  him  with  his  refusal  indorsed 
thereon,  and  must  make  out  and  sign  and  file  with  the  clerk  such  a 
bill  of  exceptions  as  will  in  his  opinion  present  the  ruling  of  the 
court  in  that  behalf  as  it  actually  occurred.7 

1R.  a  1366.  It  is  the  duty  of  the  judge,  and  not  the  appellant,  to  submit  to 
opposing  counsel  for  their  inspection,  before  signing  them,  bills  of  exception 
prepared  and  tendered  by  appellant's  counsel,  and  it  would  seem  that  the  ap- 
pellant ought  not  to  suffer  on  account  of  the  neglect  of  the  judge;  but  no  opin- 
ion is  expressed  as  to  whether  a  failure  to  perform  this  duty  would  in  any  case' 
itute  a  sufficient  reason  for  wholly  disregarding  the  l>ills  of  exception,  nor 
whether  the  failure  could  be  brought  to  the  notice  of  the  ap{* •ll;it«-  court  by 
:itli-l;ivits  tiled  after  appeal  Franklin  v.  Tiernan.  62  T.  92. 

*Pennington  v.  McQueen.  3  S.  W.  Rep.  815;  Willis  v.  Dunne,  61  T.  588;  Lock- 
«-tt  v.  Schurenberg,  60  T.  610:  Schaub  v.  Dallas  Brewing  Co.,  80  T.  634  (16  a  W. 
Rep.  429);  Firebaugh  v.  Ward,  51  T.  409;  Campbell  v.  Cook,  24  S.  W.  Rej> 
M;n-liall  v.  Spillane,  7  Civ.  App.  532  (11  S.  W.  Rep.  162);  Trezevant  v.  Rains,  85 
&  W.  Rep.  1092;  Farrar  v.  Bates.  55  T.  19& 

»G.,  C.  &  S.  F.  Ry.  Co.  v.  Eddins.  60  T.  656:  Lockett  v.  Schurenberg,  60  T.  610; 
Tom  v.  Sayers,  64  T.  &J9;  Yoe  v.  Montgomery,  68  T.  338  (4  > 
v.  Williams,  78  T.  685  (15  S.  W.  Rep.  163);  Schaub  v.  Dallas  Brewing  Co..  80  T. 
S.  W.  Hep.  429);  Saul  v.  Frame,  3  Civ.  Api».  590  (22  a  W.  Rep.  984);  Ma 
Pac,  Ry.  Co.  v.  Rabb,  3  App.  C.  C,  g  38;  Tex.  A  Pac.  Ry.  Co.  v.  Johnson.  -' 
§  185;  Franco-Texan  I-  Co.  v.  Chapm,-.  3  S.  W.   K.-^  -  v.  Rhine,  8  a 

W,  Rep.  315. 

•Cullers  v.  Britton.  2  App.  C.  C.,  §  281. 

*  Yourgee  v.  League,  81  S.  W.  Rep.  81. 

•O.,  a  &  a  F.  Ry.  Co.  v.  Holliday,  65  T.  51* 

"  R  a  1367, 1868. 


;.  1  -2  BILL   OF   EXCEPTIONS.  [§  541. 

The  judge  has  the  privilege  of  incorporating  into  the  bill  the  rea- 
sons for  his  opinion,  ruling  or  action.  When  tendered  to  him,  if  it 
does  not  fairly  state  the  point  made  or  the  reasons  given  therefor 
when  they  are  attempted  to  be  given,  he  is  not  required  to  sign  it, 
but  the  procedure  should  then  be  in  accordance  Avith  the  above  stat- 
ute.1 The  proper  practice,  when  the  duty  is  imposed  on  the  judge 
to  prepare  a  bill  of  exceptions,  is  to  set  forth  in  it  the  substance  of 
the  bill  tendered  by  counsel ;  the  fact  of  its  tender  to  him,  and  his 
presentation  thereof  to  the  adverse  party  or  counsel,  if  it  was  pre- 
sented, with  their  objections,  if  any;  also  the  fact  that  he  pointed 
out  the  corrections  he  required  to  counsel  tendering  the  bill;  that 
he  had  indorsed  his  refusal  to  sign  on  the  rejected  bill,  with  all  other 
facts  necessary  to  a  full  understanding  of  the  facts.  A  bill  of  ex- 
ceptions which  was  rejected  by  the  presiding  judge  when  presented 
by  counsel,  with  his  refusal  to  sign  indorsed,  and  returned  to  counsel 
having  the  preparation  of  bills  of  exception  in  charge,  will  consti- 
tute for  some  purposes  a  part  of  the  record,  if  filed  promptly  dur- 
ing the  term  by  the  counsel  to  whom  it  was  returned  by  the  judge.2 

Counsel  presented  four  bills  of  exceptions  to  the  judge  for  his  ap- 
proval. The  first  was  approved  without  qualification ;  the  second 
was  approved  with  a  qualification  written  above  the  signature  of 
the  judge ;  the  third  and  fourth  were  returned  to  counsel  without 
approval,  with  the  reasons  for  not  approving  written  therein,  and  in 
this  form  all  the  bills  were  incorporated  in  the  record.  This  was  a 
substantial  compliance  with  the  statute.  If  counsel  desired  a  bill 
prepared  by  the  court,  he  should  have  made  demand  for  one,  and  if 
the  demand  was  refused  he  should  have  excepted.3 

§  541.  Controverted  bill  of  exceptions  and  affidavits  relating  thereto. 

Should  the  party  be  dissatisfied  Avith  the  bill  of  exceptions  filed 
by  the  judge,  he  may,  upon  procuring  the  signatures  of  three  re- 
spectable bystanders,  citizens  of  the  state,  attesting  the  correctness 
of  the  bill  of  exceptions  as  presented  by  him,  have  the  same  filed  as 
part  of  the  record  of  the  cause ;  and  the  truth  of  the  matter  in  ref- 

1  Firebaugh  v.  Ward,  51  T.  409. 

2  Lanier  v.  Ferryman,  59  T.  104 

3  Johnson  v.  Lyford,  29  S.  W.  Rep.  57.    The  refusal  of  a  judge  to  sign  a  bill  of 
exceptions,  which  it  is  apparent  could  not  have  affected  the  result  in  the  appel- 
late court,  will  afford  no  ground  for  reversal.     Belo  &  Co.  v.  Wren,  63  T.  686. 

If  by  any  undue  practice  the  signature  of  the  trial  judge  should  he  procured 
to  a  bill  of  exceptions  it  would  be  competent  for  the  court  below,  on  motion  for 
that  purpose,  to  strike  such  bill  of  exceptions  from  the  record,  even  after  the 
adjournment  of  the  term.  The  record  cannot  be  corrected  in  the  appellate  court 
after  the  cause  has  been  submitted.  E.  L.  &  R.  R,  Ry.  Co.  v.  Culberson,  72  T.  375 
(10  S.  W.  Rep.  706).  It  is  not  error  for  the  trial  judge  to  refuse  to  sign  a  bill  of 
exceptions  to  his  action  in  the  trial  of  a  cause  which  action  appears  otherwise 
in  the  record.  Masterson  v.  Little,  75  T.  682  (13  S.  W.  Rep.  154). 


BILL  OF   EXCEPT!  513 

erence  thereto  may  be  controverted  ami  n  .aintained  by  :itH.I 
nut  i-xr.-.'dini:  live  in  number  on  each  sidr,  to  be  filed  n  itli  the  ]<.• 
of  the  ran-'-.  within  ten  days  after  the  tiling  of  such  bill 
tions.  ami  to  be  OOOfldered  as  a  part  of  the  record  ivlatimr  thereto.1 

A  bill  authenticated  l>y  bystanders  must   show  that    it  was 
seated  to  the  judge,  and  that  he  refused  to  :  ign  it  and  eertified  tin- 

W  of  his  refuel.     The  certificate  of  tin-  bystanders  miKt 
on  its  fan-  that  the  persons  signing  it  were  bystanders;  that  they 
when  the  fact  in  dispute  occurred  in  court;  and  must 
]>oint  directly  t<>  the  matter  in  issue.     The  certificate  slmuM 
be  given  at  tin-  time  of  the  occurrence  of  the  fact.     It  should  then 
appear  whether  the  judge  permitted  the  bill  to  be  tiled;  if  not,  alii 
davits  should  bo  produced.     If  the  judge  is  of  the  opinion  that  the 
bill  as  authenticated  by  bystanders  is  not  true,  it  is  his  duty  to 
forbid  the  filing  of  it,  leaving  the  facts  to  be  authenticated  bv  affi- 
davit.1   A  paper  tiled  as  a  bill  of  exceptions  in  a  can  gned 

by  the  jud^-'.  but  by  three  citizens,  eight  days  after  the  trial  (the 
judire  havinir  refused  to  sign),  which  fails  to  show  that  those  who 
signed  it  were  present  at  the  trial,  or  that  their  certificate  was  u 
at  the  time  when  the  occurrence  to  which  it  related  transpired,  will 
not  be  regarded  on  appeal.1 

S  542.  Where  the  trial  is  by  the  court. 

AVhere  the  trial  is  by  the  court,  the  conclusions  of  fact  and  of 
law  are  filed  with  the  clerk  and  constitute  a  part  of  the  record.  In 
such  cases,  it  is  sufficient  for  the  party  excepting  to  the  conclusions 
of  law  or  the  judgment  of  the  court  to  cause  it  to  be  M  the 

record  in  the  judgment  entry  that  he  excepts  the  1  he  may 

thereupon  take  his  appeal  or  writ  of  error  without  a  :it  of 

-  or  further  exceptions  in  the  transcript,  but  the  transcript  must 
contain  the  special  verdict  of  the  jury,  if  any,  or  the  c-  us  of 

fact  and  law,  and  the  judgment  thereon.4     When  the  t  -v  the 

judge,  and  the  judgment  is  not  rendered  before  the  end  of  ; 
but  the  cause  is  continued  by  consent  of  parties,  a  statement  of 
facts  and  bill  of  exceptions  may  be  prepared  and  filed  upon  request 
in  writing  by  either  party.* 

Failure  to  file  conclusions  on  request  must  be  shown  by  bill  of 

1  R.  a  1369;  Firebau^'h  v.  \Yar.l,  r>\  T.  409.    Provision  la  made  for  admitting 
surh  nill  us  a  part  ->f  the  r.-<-or«l  in  the  court  of  civil  appeals.    &  &  1014, 

1  Houston  v.  J  1  TD. 

>  Heidenh'-ini.  r  v.  Thomas,  63  T.  287.    Where  a  party  fails  to  use  proper 
gence  at  the  proper  time  to  secure  a  hill  of  exceptions,  he  is  not  entiUed  to  a 
writ  of  mandamus  to  compel  the  judge  to  prepare  and  sign  one.    O.,  C  Jt  S.  F. 
Rv.  Co.  v.  Lock!  297. 


•Rulefft 


BILL   OF   EXCEPTIONS.  [§  542. 

exceptions.1  A  full  statement  of  facts  may  take  the  place  of  con- 
clusions of  the  judge.2 

Where  no  exceptions  are  taken  to  the  conclusions  of  law  of  the 
judge  or  to  the  judgment,  the  only  inquiry  on  appeal  will  be  as  to 
whether  the  pleadings  authorized  the  judgment.3  Where  it  does 
not  appear  that  any  exception  was  properly  taken,  and  the  court's 
attention  was  not  called  to  any  defect  in  the  findings  by  a  motion 
for  a  new  trial,  such  an  actual  finding  upon  all  the  facts  will  be  im- 
puted to  the  court  as  will  justify  its  judgment  under  the  pleadings.4 

If  the  law  is  not  complied  with  by  filing  a  separate  finding  of 
facts,  a  party  is  entitled,  on  pointing  out  the  defect,  to  have  the  facts 
shown  by  a  statement  of  facts.5 

A  bill  of  exceptions  filed  after  the  term  will  not  be  considered, 
and  the  conclusions  of  the  judge  when  so  filed  will  not  be  considered 
in  place  of  a  bill  of  exceptions.  They  will  not  be  considered  on  ap- 
peal, if  filed  after  the  term  by  consent  of  counsel,  and  dated  as 
though  filed  during  the  term.6  A  finding  that  a  party  has  com- 
plied with  the  law  so  as  to  fix  a  lien  upon  certain  property  in  his 
favor  as  a  material-man  is  not  a  finding  of  facts.7 

1  Fuller  v.  Follis,  24  S.  W.  Rep.  368;  Scurry  v.  Fromer,  26  S.  W.  Rep.  461;  Hop- 
son  v.  Schoelkopf,  27  S.  W.  Rep.  283;  Landa  v.  Heerroan,  85  T.  1  (19  S.  W.  Rep. 
»S5):  Cleveland  v.  Sims,  69  T.  153  (6  S.  W.  Rep.  634). 

2  Alamo  Fire  Ins.  Co.  v.  Shacklett,  26  S.  W.  Rep.  630;  Wilkins  v.  Burns,  25 
S.  W.  Rep.  431. 

SMcKee  v.  Price,  3  App.  C.  C.,  §  336;  Continental  Ins.  Co.  v.  Milliken,  64  T.  46. 

4  Spencer  v.  James,  31  S.  W.  Rep.  540. 

5  Seymour  Opera-House  Co.  v.  Wooldridge,  31  S.  W.  Rep.  234. 

6  Maverick  v.  Burney,  30  S.  W.  Rep.  566. 

7  Seymour  Opera-House  Co.  v.  Wooldridge,  31  S.  W.  Rep.  234. 


xxxiv. 


AIKiUMENT  OF  COUN 


543.  Order  of  argument 

544  General  rules. 

545.  Arguments  on  the  facts  to  be 
confined  to  the  evidence, 
le-bar  remarks  prohibited;  ob- 
jections to  violation  of  rules 
in  argument. 

o  17.  Objections,  when  and  how  taken. 

548.  Right  to  a  reasonable  time  for 

argument 

549.  Improper   remarks  are  ground 

for  reversal,  when. 


%  550.  Argument  on  the  law. 

551.  Reflections  on  oppo- 

552.  Effect  of  correction  l>y  court  :m<l 

retraction  by  coin 

553.  Latitude  allowt-d  \\li.-i- 

gument  is  cuntin.  .|  to  the  evi- 
dence. 
554  Reply  to  i  in  proper  argument 

555.  Prejudice  against  corporal: 

556.  Statement  of  facts  nut  in 

dence. 

557.  Reading  from  book& 


.i  543.  Order  of  argument. 

After  the  evidence  is  concluded  the  parties  may  submit  the 
to  the  jury  in  argument.     The  party  having  under  the  pleadings 
the  burden  of  proof  on  the  whole  case  is  entitled  to  open  ami 
elude  the  argument;  where  there  are  several  other  parties  having 
separate  claims  or  defenses,  and  represented  by  different  <-omi>el,  the 
court  may  prescribe  the  order  of  argument  between  them.1    llul. 
providing  for  the  admission  by  defendant  of  plaintiff's  rause  of  ac- 
tion, so  as  to  secure  the  right  to  open  and  close,  is  held  not  in 
flict  with  this  statute.2 

It  is  provided  by  rule  that  counsel  for  plaintiff,  or  for  defendant, 
when  he  holds  the  affirmative  of  the  issue,  shall  have  the  right  t<> 
open  and  conclude;  but  if  he  waives  the  right  of  opening  the  argu- 
ment, he  shall  not  have  the  right  to  conclude.  This  rule  applies  to 
motions,  exceptions  to  evidence,  and  all  other  matters  presented  to 
the  court,  except  in  rules  to  show  cause,  in  which  the  party  called 
on  shall  beijin  and  end  his  cause.1 

When,  after  the  plaintiff's  counsel  has  addressed  the  jury,  th- 
fendant's  counsel  declines  to  make  an  argument,  the  court  will  not 
revise  the  discretion  of  the  trial  judge  in  permitting  a  st> 
argument  to  be  made  by  plaintiff's  attorney  when  no  injury  is  shown 
to  have  resulted.4 

i  R  a  1299. 

-  Hitt^.n  v.  Stat.-  Nat.  Bank,  14  a  W.  Rep.  780. 
'Ru! 

*  T.  &  P.  Ry.  Co.  v.  Scott,  04  T.  549. 


516  ARGUMENT   OF   COUNSEL.  [§§  544,  545. 

Whoro  .1  material  issue  is  not  discussed  in  the  opening,  if  raised 
in  the  closing  argument  and  the  argument  is  directed  to  the  court 
with  a  view  to  have  a  charge  upon  the  point,  such  conduct  of  the 
case  is  not  sufficient  ground  for  reversal.  While  it  is  the  duty  of 
counsel  opening  the  cause  to  present  the  whole  case  as  he  relies  upon 
it,  both  of  law  and  fact,  yet  it  must  not  be  understood  by  this  that 
counsel  must  notice  every  particle  of  evidence  tending  to  establish 
a  fact  or  otherwise  be  denied  the  right  to  refer  to  it.1 

§  644.  General  rules  as  to  argument  of  counsel. 

An  application  for  first  continuance  shall  not  be  argued. 

In  all  arguments,  and  especially  in  arguments  on  the  trial  of  the 
case,  the  counsel  opening  must  present  his  whole  case  as  he  relies 
on  it,  both  of  law  and  facts,  and  will  be  heard  in  the  concluding 
argument  only  in  reply  to  the  counsel  on  the  other  side. 

Counsel  for  an  intervener  occupies  the  position  in  the  argument 
assigned  by  the  court  according  to  the  nature  of  the  claim. 

Arguments  on  questions  of  law  must  be  addressed  to  the  court, 
and  counsel  should  state  the  substance  of  the  authorities  referred 
to  without  reading  more  from  books  than  may  be  necessary  to 
verify  the  statement.  On  a  question  on  motions,  exceptions  to  the 
evidence,  and  other  incidental  matters,  the  counsel  wrill  be  allowed 
only  such  argument  as  may  be  necessary  to  present  clearly  the 
question  raised,  and  refer  to  authorities  on  it,  unless  further  discus- 
sion is  invited  by  the  court.2 

It  is  the  duty  of  every  counsel  to  address  the  court  from  his 
place  at  the  bar,  and  in  addressing  the  court  to  rise  to  his  feet;  and 
while  engaged  in  the  trial  of  a  case  he  must  remain  at  his  place  in 
the  bar. 

N  •  >t  more  than  two  counsel  on  each  side  will  be  heard  on  any 
question  or  on  the  trial,  except  in  important  cases,  and  upon  special 
It-live  of  the  court.3 

After  the  court  has  pronounced  its  opinion  upon  a  question  made, 
no  further  argument  will  be  heard ;  but  if  counsel  think  the  court 
has  fallen  into  error  as  to  law  or  fact,  they  may  submit  a  state- 
ment in  writing,  which  the  court  will  receive  and  consider.4 

The  court  may  hear  argument  on  exceptions  to  the  admission  or 
exclusion  of  evidence.5 

?'  546.  Arguments  on  the  facts  to  be  confined  to  the  evidence. 
Arguments  on  the  facts  must  be  addressed  to  the  jury,  when  one 
is  impaneled  in  a  case,  under  the  supervision  of  the  court.    Counsel 

1  Wills  Point  Bank  v.  Bates,  72  T.  187  (10  S.  W.  Rep.  348). 

2  Rules  35-38. 

3  Rules  42.  44. 

4  Rule  52. 
» Rule  60. 


§  54G.]  ARGUMENT   OF   COUNSEL.  .'.  1  7 

are  required  to  confine  the  argument  strictly  to  the  evidence  and 
to  th»-  arguments  of  opposing  counsel.     Mere  personal  crit 
counsel  upon  each  other  must  be  avoided,  and  when   induL- 
must  IK-  promptly  corrected  as  a  contempt  of  court.1 

Win-re  evidence  is  excluded  by  the  court,  argument  of  counsel 
upon  its  non-production  is  properly  prevented.'    Where  n» •_ 

alleged  on  the  part  of  trainmen,  and  no  proof  was  oiler- 
an  effort  to  stop  the  train,  it  was  not  improper  for  plaintit! 
.sel  to  urge  that  no  effort  was  made.3 

It  is  error  in  the  court  to  allow  counsel  to  discuss  before  the  jury 
the  irrelevant  question  of  the  wealth  of  a  party,  and  to  insist  that 
the  wealthier  the  parties  the  greater  should  be  the  amount  of  dam 
ages  assessed  against  them:  and  this  error  is  not  cured  by  the  fail- 
ure of  opposing  counsel  to  interpose  objection  at  the  tint 

g  546.  Side-bar  remarks  prohibited;  objections  to  violation  of  rules 
in  argument. 

Side-bar  remarks  and  remarks  by  counsel  of  one  side  not 
dressed  to  the  court,  while  the  counsel  on  the  other  is  examin: 
witness,  or  arguing  any  question  to  the  court,  or  addr- 
jury,  will  be  rigidly  repressed  by  the  court     The  court  is  not  re- 
quired to  wait  for  objections  to  be  made  when  the  rules  as  to  a 
raents  are  violated,  but  should  such  violations  not  be  noticed  and 
corrected  by  the  court,  opposing  counsel  may  ask  leave  to  rise  and 
present  his  point  of  objection.     But  the  court  must  protect  001. 
from  any  unnecessary  interruption  made  on  frivolous  and  unim- 
portant grounds.5 

The  practical  enforcement  of  the  rules  of  court  against 
remarks,  etc.,  must  be  left  mainly  to  the  trial  courts,  and  there  must 
be  strong  reasons  to  believe  that  injustice  has  been  caused  by  a 
lation  of  such  rules  before  the  action  of  the  trial  court  will  be  held 
cause  for  reversal.8    The  use  of  offensive  epithets  towards  \\\< 
posite  paily  during  the  argument  are  not  deemed  injurious  to  the 

vests  of  such  party,  especially  where  counsel  is  prompt  1 
proved  and  admonished  by  the  court.7     Where   counsel  p. 
asking  leading  questions,  al'ter  iM-in-r  admonished,  a  remark  l»y  op- 
posing  couiiM-1,  ••  You  needn't  lead  that  wit  in-  11  tell  en 

anyhow,"  is  not  can  so  for  complaint.8 

»  Rule  39:  H.  &  T.  C.  Ry.  Co.  v.  Newman,  2  App,  C.  C.,  §  350. 

-  Martin  Hn.wn  Co.  v.  Perrill.  77  T.  I'.w  (13  S.  \V.  Rep.  975). 
»G..  H.  &  &  A.  Ry.  Co.  v.  Dm-lin.  -'5  S.  W.  Rep.  59«. 

*  Willis  v.  Mi-NVill.  .->7  T.  405. 
A  Rules  40.  41. 

r:u-.  Ily.  Oft  v.  L.-un-.th-.  f.  T.  tit (II  S.  \V.  Rejx  104). 
Ma\.-r  v.  Dnk.-.  7','T.  -ll-MluS.  NV.  1, 
-t.  L.  &  S.  F.  Hy.  Oi.  v.  Daughterj'.  81  S.  W.  Uep.  70-1 


518  ARGUMENT   OF   COUNSEL.  [§  547. 

£  547.  Objections,  when  and  how  taken. 

The  cases  are  not  uniform  on  this  subject.  In  some  it  is  held  that 
the  objection  must  be  made  promptly,  in  time  to  check  the  objec- 
tionable argument;  in  others  it  is  held  that  the  error  is  not  waived 
by  failing  to  object  at  the  time.  It  is  said  that  the  discretion  given 
to  counsel  by  the  rules,  as  to  whether  he  will  make  the  objection  at 
the  time,  was  doubtless  based  upon  the  well-known  embarrassments 
and  often  prejudice  which  generally  attend  the  interruption  of  the 
argument  of  one  counsel  by  another,  and  that  it  was  the  intention 
to  place  the  duty  where  it  properly  belongs  —  upon  the  presiding 
judge;  that  whether  counsel  remains  silent  or  objects  may  be  alike 
prejudicial  to  his  cause;  silence  may  be  construed  into  acquiescence, 
objection  may  call  forth  a  damaging  repartee.1 

The  weight  of  authority,  however,  seems  to  be  in  favor  of  mak- 
ing objection  at  the  time.  "  It  is  peculiarly  the  office  of  an  objec- 
tion or  exception  of.  this  kind  that  it  shall  be  made  at  the  time  of 
the  act  complained  of,  in  order  that  the  evil  may  be  promptly  reme- 
died. To  allow  without  objection  the  continuation  of  such  a  line 
of  argument  would,  in  some  cases,  enable  a  party  to  take  the  chance 
of  a  favorable  verdict,  and  which,  if  adverse  to  him,  could  be  set 
aside  upon  objections  which,  if  promptly  made,  would  have  resulted 
in  a  correction  by  the  court." 2  It  is  said  that  if  objection  is  not 
made  at  the  time,  a  reversal  cannot  be  had  unless  the  language 
complained  of  was  plainly  prejudicial  to  an  impartial  trial,3  or  was 
of  "  the  most  flagrant  character." 4 

It  is  the  right  of  every  litigant,  while  acting  in  good  faith,  to  ob- 
ject to  any  argument  made  to  a  jury  on  behalf  of  his  adversary 
which  he  regards  as  improper,  and  it  is  not  proper  for  opposing 
counsel  to  ask  the  jury,  either  directly  or  by  implication,  to  con- 
sider such  an  objection  as  evidence  against  the  party  making  it,  on 
the  merits  of  the  case.5 

The  objectionable  language  should  be  presented  to  the  lower  court 
in  a  motion  for  a  new  trial.  But  whether  the  appellate  court  would 
refuse  to  consider  the  objection  if  not  so  presented  is  not  stated.6 

'  Willis  v.  McNeill,  57  T.  465;  Prather  v.  McLelland,  26  S.  W.  Rep.  657:  I.  &  G. 
N.  Ry.  Co.  v.  Smith,  1  S.  W.  Rep.  565. 

--Moore  v.  Moore,  73  T.  382  (11  S.  W.  Rep.  396);  Bender  v.  Peyton,  4  Civ.  App. 
57  (-2:5  S.  W.  Rep.  222). 

< '.  &  S.  F.  Ry.  Co.  v.  Greenlee,  70  T.  553  (8  S.  W.  Rep.  129). 

4  W.  U.  Tel.  Co.  v.  Apple,  28  S.  W.  Rep.  1022. 

\V.  U.  Tel.  Co.  v.  Wingate,  6  Civ.  App.  394  (25  S.  W.  Rep.  439).  In  Moore  v. 
Rogers,  84  T.  1  (19  S.  W.  Rep.  283),  no  objection  was  made  in  the  lower  court, 
either  at  the  time  or  in  the  motion  for  a  new  trial,  and  the  supreme  court  re- 
fused to  consider  the  question. 

6 1.  &  G.  N.  Ry.  Co.  v.  Irvine,  64  T.  529.  A  bill  of  exceptions  to  words  spoken 
in  argument  was  filed;  the  adverse  party,  who  was  the  plaintiff,  sought  by  mo- 
tion to  have  it  corrected,  alleging  that  the  bill  had  not  been  submitted  to  the 


19.]  ARGUMENT   OF   COUNSEL.  519 

?  548.  Right  to  a  reasonable  time  for  argument. 

The  right  to  make  an  argument  to  the  jury  is  given  by  - 
and  any  unreasonable  infringement  of  the  riic'.it  bv  the  court  will 
be  ground  for  reversal.     The  court  ma  :ul  discretion 

as  to  tin-  anumnt  of  argument  permitted,  l>ut  parties  have  a  right 
to  a  reasonable  time  for  the  presentation  of  the  facts  to  t 
as  well  as  a  reasonable  time  to  comment  on  those  facts,  and  to  draw 
therefrom  what  they  may  consider  the  natural  and  l.-^itimat. 
duct  ions.     What  time  would  be  reasonable  and  proper  must  depend 
very  much  upon  the  nature  of  the  case,  and  the  facts  to  be  pr>- 
1,  and  the  matter  is  not  subject  to  the  arbitrary  .n  of 

the  judge.2  In  regard  to  the  practice  of  reading  law  authorities  to 
the  court,  it  is  said  that  no  positive,  inflexible  rule  can  bo  given. 
The  rule  is  well  established,  however,  which  permits  the  reading  of 
law  authorities  in  the  presence  of  the  jury;  but  the  court  ought  to 
be  permitted  to  protect  the  interests  of  litigants  and  the  public 
against  any  unnece»ary  consumption  of  time  in  the  discussion  of 
such  matters.5 

£  549.  Improper  remarks  are  ground  for  reversal,  when. 

The  use  of  improper  language  in  argument  furnishes  ground  for 
reversing  a  judgment  only  in  cases  in  which  the  preponderant 
evidence  seems  against  the  verdict,  or  the  verdict  is  excessive,  and 
there  is  ivason  to  believe  that  it  may  have  been  affected  by  the 
conduct  of  counsel.     Litigants  are  not  to  be  punished  by  rev. 
for  improprieties  of  their  counsel,  unless  there  is  reason  to  b« 
that  such  conduct  affected  the  merits  of  the  case.4     Improp. 

plaintitT  or  t"  h  I.     The  motion  was  overruled  for  the  reason  "tl. 

!ai;-_'ii:iu''-  .Klmitti  >1  in  tin-  motion  was  substantially  the  same  as  that  contained 
in  tlu-  bill  as  iil.-.l."  On  appeal  tin-  (puestion  so  raised  by  th.-  motion  was  consld- 

in.l  tin-  ruling  of  tin-  trial  court  adhered  to  and  approved.    O.,  C.  A 
Ry.  Co.  v.  Jon.  IIS.  W.  Rep.  185). 

In  the  openin.;  :n  -iini-'iit  counsel  used  lanKiiap-  which  \viis  objected  to  M  im- 

•r.     Tin- trial  .ju-lu'-  >uMain.-d   tin-  objection.     If  this  action  of 
was  ill-rim   I  in-iith'. -i. -lit  t««  c.invct  tin-  impression,  a  special  charge  shouM  ha\<- 
been  asked  upon  tin-  subject,  and  if  refits,  ,1  a  hill  of  exceptions  si; 
facts  making  the  <-i,  :nt-nt   sliould  have  been  tendered.     In  absence  of 

il  r.-.ju  -t  -..  to  c,,nvt  th.-  error,  the  appellate  court  <-an  rarely  K'iv.   : 
u,-r  v.  Cl.-nii.  1»  T.  .VM  1 13  S.  W.  Rop.  572). 
i  K.  S.  1 

JNesbitt  v.  Walt  ,76. 

•  Mnytield  v.  i.'otton.  :;:  T.  229t 

*I.  ,v  '-.  N    Ry,  «  a  r.  Irviip.  -'.I  T  •..'.':  II.  ,v  T.  C  Ky.  Co.  T.  O*Hare.  64T.600: 

BotcMnj  «'<xv.  Cros- 

k.-ll.  r,  Cis.  A  pp.  I''."    .'-.  s.  W.  Rep.  436):  W.  r.  T.-l.  <  M'P-  *W 

il.  \-  s.  A.  Ky.  Co.  r.  l>u.  (•  i>.  5«h 

Willi-  v.  Lours.  ••.•;  T.  :.i»    .'  &  \\ 
2  U.  C.  301:  BUia  v.  Simps.-n.  «M5  T 
Garc;  \..^.\\-.\l>.(^.y\'-l^-i\'i  \V.Rep.»i7 


320  ARGUMENT   OF  COUNSEL.  [§  549. 

marks  of  the  successful  counsel  are  presumed  to  have  influenced 
the  minds  of  a  jury,  and  are  grounds  for  reversal  if  the  verdict  is 
airainst  the  great  preponderance  of  evidence.1  When  counsel  in  ar- 
gument go  bevond  a  discussion  of  the  issues  arising  out  of  the  plead- 
ings and  evidence,  exceptions  should  be  taken  at  once.  It  is  only 
Avhere  remarks  of  counsel  are  reprehensible,  not  provoked  by  the 
other  side  and  in  answer  thereto,  called  to  the  attention  of  the  court 
and  not  bv  the  court  checked,  and  some  probability  existing  that 
the  verdict  was  influenced  thereby,  that  they  will  be  ground  for  re- 
versal.2 

Where  the  remarks  of  counsel  are  calculated  to  divert  the  minds 
of  the  jurors  from  the  real  issues  in  the  case,  and  to  influence  their 
feelings  so  as  to  prevent  a  deliberate  exercise  of  rational  judgment, 
and  there  is  reasonable  doubt,  in  view  of  the  evidence,  of  the  cor- 
rectness of  the  verdict,  and  a  strong  probability  that  it  would  not 
have  been  so  large  in  amount  but  for  the  use  of  the  improper  and 
inflammatory  remarks,  the  verdict  ought  to  be  set  aside  and  a  new 
trial  granted.3  The  courts  will  hesitate  to  reverse  a  judgment 

v.  Johnson,  23  S.  W.  Rep.  1022;  Sinclair  v.  Stanley,  69  T.  718  (7  S.  W.  Rep.  511); 
G..  H.  &  H.  Ry.  Co.  v.  Cooper,  70  T.  67  (8  S.  W.  Rep.  68);  G..  C.  &  S.  F.  Ry.  Co.  v. 
Jones,  73  T.  232  (11  S.  W.  Rep.  185);  Ft.  W.  &  D.  C.  Ry.  Co.  v.  Johnson,  5  Civ. 
App.  15  (23  S.  W.  Rep.  826);  San  A.  &  A.  P.  Ry.  Co.  v.  Bowles,  30  S.  W.  Rep.  727; 
Lewis  v.  Alexander,  31  S.  W.  Rep.  414;  Tex.  &  Pao.  Ry.  Co.  v.  Pollard,  2  App. 
C.  C.,  §  488. 

1  Blum  v.  Simpson,  66  T.  84  (17  S.  W.  Rep.  402). 

2  Moore  v.  Moore,  73  T.  382  (11  S.  W.  Rep.  306).    Where  the  trial  judge  refuses 
.to  grant  a  new  trial  on  account  of  extravagant  remarks  made  by  counsel,  the 

court  of  civil  appeals  will  not  reverse,  unless  the  record  makes  it  appear  reason- 
ably probable  that  an  erroneous  result  has  been  thereby  produced.  Tex.  &  Pac. 
Ry.  Co.  v.  Raney,  23  S.  W.  Rep.  340. 

Where  the  trial  judge  overrules  a  motion  for  new  trial  in  a  case  in  which 
counsel  indulged  in  improper  remarks  in  his  speech  to  the  jury,  it  may  be  as- 
sumed that  the  judge  has  concluded  that  no  injurious  results  from  such  remarks 
have  entered  the  verdict;  and,  while  the  appellate  court  will  revise  this  conclu- 
sion, yet  it  will  not  reverse  unless  the  case  is  a  plain  one.  When  an  exception 
of  this  kind  is  presented,  the  trial  judge  may  very  appropriately  give  the  appel- 
late court  the  benefit,  in  an  addendum  to  the  bill,  of  any  fact  or  views,  not 
otherwise  disclosed  by  the  record,  supporting  his  conclusion  that  the  complain- 
ing party  has  suffered  no  injury  from  the  unauthorized  remarks  of  counsel. 
Radford  v.  Lyon,  65  T.  471. 

aG.,  C.  &  S.  F.  Ry.  Co.  v.  Butcher,  83  T.  309  (18  S.  W.  Rep.  583);  G.,  C.  &  S.  F. 
Ry.  Co.  v.  Norfleet,  78  T.  321  (14  S.  W.  Rep.  703).  Statement  of  counsel  in  argu- 
ment of  reasons  for  not  bringing  forward  certain  witnesses,  not  being  calcu- 
lated to  arouse  passion  or  prejudice,  and  the  verdict  not  being  attacked  as 
wanting  in  support  as  to  actual  damages,  noticed  only  to  be  condemned.  Inter- 
national &  G.  N.  Ry.  Co.  v.  Greenwood,  2  Civ.  App.  76  (21  S.  W.  Rep.  559);  Hans- 
bro  v.  Blum.  8  Civ.  App.  108  (22  S.  W.  Rep.  270). 

Counsel,  in  his  closing  speech  to  the  jury,  was,  unrebuked,  allowed  to  say: 
"Counsel  for  defendant  tells  you  that  I  may  try  to  prejudice  you.  I  have  not 
told  you  of  the  great  privileges  the  city  has  given  to  it;  I  have  not  said  any- 
thing about  its  not  having  an  effective  hydrant  in  this  whole  city;  I  have  not 


§  550.]  ARGUMENT   OF   i: 

solely  for  the  use  of  improper  language  l.y  counsel  for  the  success- 
ful party,  in  a  case  in  which  they  aiv  unable  to  >ay  the  •  \  idenoo 
preponderates  against  the  finding;  hut  where  to  invective  is  ;id«led 
star. -meats  of  fact  not  in  evidence,  exceed ingly  damaging  to  tho 
t  of  a  witness  whose  testimony  must  bo  broken  down  to  seemv 
a  verdict,  and  the  statements  probably  hud  tho  desired  effect,  the 
judgment  ought  to  be  reversed.1 

In  suits  for  damages  counsel  may  urge  the  jury  not  to  bring  in  a 
compromise  verdict,  and  may  ask  for  large  damages,  ui-^iii^  the 
matter  upon  the  attention  of  tho  jury.     Tho  jury  are  supposi 
be  aware  of  their  power  in  awarding  d-unagfs.    Reference  by  coun- 
sel to  the  fact  that  he  is  interested  in  the  verdict  is  condeinnv 

£  55O.  Argument  on  the  law. 

AVhere  the  argument  is  upon  a  legal  proposition  addressed  to  tho 
court,  there  is  no  limitation  by  the  rules  restricting  counsel  to  the 
pleadings  and  evidence.     Counsel  has  the  right  to  address  an  argu- 
ment upon  the  law  of  the  case  to  the  judge,  with  A  view  to  instruc- 
tions to  l»e  H-ked  upon  his  own  hypothesis  as  to  the  legal  deduct  ions 
which  arise  upon  the  case  before  the  court.     A  departure  from  tho 
legitimate  hounds  of  this  right,  or  an  abuse  of  it  l>y  an  imp; 
discussion  of  facts  not  involved  in  the  proper  illustration  of  the 
point  under  discussion,  or  allusions  made  unnecessarily  and  within 
bearing  of  the  jury,  would  fall  within  the  spirit,  at  least,  of  the  in- 
hibition contained  in  rule  39,  and  the  court  should  promptly  r 
late  the  conduct  of  counsel  under  such  circumstances  by  taking  the 
appropriate  action  to  prevent  the  impropriety.1 

told  you  that  thi*  corporation  has  a  place  up  here  on  the  street  where  it  r 
water  by  the  barrel."  etc.     Being  exeepted  to.  aii'l  con.~.ider.-d  alon^  with  the 
assignment  complaining  that  the  verdict  was  av'.iiii-t  tic-  w.-1-ht  of  the  evi- 
.  a  n'-w  trial  should  have  been  granted.    Houston  Water-work*  C<x  v. 
Harris,  8  Civ.  A |>p.  475  (23  a  W.  Rep.  48). 

1  Wichita  Valley  Mill  Co.  v.  Hobbs.  ft  Civ.  App,  84  (23  S.  W.  Rep.  '.' 
was  an  action  liy  an  employee  against  a  mill  e-.mpany.     PlaintiffM  « 
his  elo^in-  urirumiMir  to  the  jury,  stated  that  defcn  lant  had  tri.-d  to  - 
farm. -is  down  t<>  tin-  lowest  notch  on  tin-  price  of  wh.-at,  and  had  Hwindi- 
ch.'iitfd  them  liy  fal-»-  \vcJKhts,  and  wan  now  trying  to  swindle  plaintitT 
his  hard   earnings,  and  that  H..  .icffiidant's  pr-^i.l  Mit.  was  a  man  whose  every 
thought  is  how  to  H.|U«-''/,e  the  last  cent  out  of  tin-  farmer*,  and  should  U>  taught 
that  Much  -  would  not  be  tolerated  by  an  hoin-»t  jury.     This  language 

x'ini'ilv  .  \.  •  |»ted  to,  an<l  was  allowed  to  go  unrehuked  hy  tin-  court.    Tin- 
nee  was  con tlicnn ::.  and  M's  t">timony  had  to  U«  lirokni  down  to  w 
v.-rdiet  for  plaintiff.     There  was  no  evidenw  t<>  support  t 

that  n  witn-ss  stated  he  had  heard  nplaint    of  short    u-u-Mic     It  was 

that  a  judgment  for   plaintilT  should  JK;  reverse<l:  that  th-   n-niark- 
justiti.-cl  hy  a  slat-m.-nt  of  d.-fendantV  attorn,  y  that  -  t  hit  whole  cas,- i- U.1 - 
up  I'.v  the  dis.-liar-'-d  employees  of  th-'  d«-iVn-lai!t .  "  -"m«-  of  plaiutill's 
IKMD  -ucli  discharged  .•mp!..yee«. 

-  M...  Pa. .  i;v.  c,,.  v.  Wliite.  MS.  W.  Iiep.808), 

'Wood  v,  Samuels,  1  Apin  C.  C.,  | 


."  I'l!  ARGUMENT   OF   COUNSEL.  [§§  551,  552. 

It  is  not  error  to  permit  counsel,  in  the  closing  argument,  to  reply 
to  an  argument  made  by  the  adversary  on  a  question  of  law  appli- 
cable to  the  case,  and  to  comment  upon  authorities  applicable  to  the 
question.1 

S  551.  Reflections  on  opposite  party. 

Improper  and  uncalled  for  reflections  on  a  party  to  a  suit  by 
counsel,  during  a  trial,  when  not  warranted  by  the  evidence,  may 
furnish  ground  for  the  reversal  of  a  judgment.2  "Where  on  the  trial 
t\vo  issues  were  presented,  upon  either  of  which  the  verdict  could 
have  been  rendered,  upon  one  of  which  there  was  a  preponderance 
in  the  testimony  against  the  verdict,  and  the  counsel  of  the  success- 
ful party  in  argument  to  the  jury  used  abusive  language  not  war- 
ranted by  the  testimony,  and  calculated  to  excite  prejudice  and 
influence  hostile  feelings  against  his  adversary,  such  line  of  argu- 
ment was  considered  ground  for  reversal.  It  is  said  that  parties 
ought  not  to  be  punished  for  misconduct  of  their  counsel  not  sus 
tained  or  influenced  by  them,  but  that  they  must  be  held  bound  to 
relinquish  a  judgment  where  there  is  reasonable  ground  to  believe 
that  it  may  have  been  obtained  through  an  appeal  to  the  prejudice 
of  the  jury.3 

The  defendant  in  his  testimony  had  testified  that  he  had  caused 
title  to  certain  property  to  be  made  to  his  mother-in-law  to  put  it 
out  of  reach  of  his  creditors.  Adverse  counsel  denounced  it  as 
colossal  rascality,  and  it  was  held  that  the  use  of  such  epithet  upon 
such  state  of  facts  was  no  ground  for  reversal.4 

§  552.  Effect  of  correction  by  court  and  retraction  by  counsel. 

The  rule  seems  to  be  that  an  expression  of  counsel  in  argument 
may  be  recalled  or  retracted,  under  admonitions  and  directions  of 
the  court,  so  as  to  leave  the  jury  without  prejudice.5  It  is  said  that 
cases  may  arise  in  which  a  retraction  would  not  be  a  sufficient  rem- 
edy." It  seems  that  there  might  remain  a  sufficient  ground  for  re- 
versal if  the  court  deemed  the  verdict  excessive.7 

1  Tex.  &  Pac.  Ry.  Co.  v.  Garcia,  62  T.  286. 

2Frankland  v.  Tiernan,  62  T.  92;  Beville  v.  Jones,  74  T.  148  (11  S.  W.  Rep. 
1128). 

3  Moss  v.  Sanger,  75  T.  321  (12  S.  W.  Rep.  619). 

<  Hickey  v.  Behrens,  75  T.  488  (12  S.  W.  Rep.  679). 

5  Pullman  Palace-Car  Co.  v.  Booth,  28  S.  W.  Rep.  719;  G.,  C.  &  S.  F.  Ry.  Co.  v. 
Johnson,  83  T.  628  (19  S.  W.  Rep.  151). 

«  Texas  Standard  Oil  Co.  v.  Hanlon,  79  T.  678  (15  S.  W.  Rep.  703). 

7  G.,  C.  &  S.  F.  Ry.  Co.  v.  McMalum.6  Civ.  App.  601  (26  S.  W.  Rep.  159).  In  the 
closing  argument  counsel  for  plaintiff  used  improper  language;  the  court 
promptly  checked  him.  and  instructed  the  jury  to  disregard  the  improper  argu- 
ment. There  was  testimony  sufficient  to  sustain  the  verdict,  which  was  not 
excessive,  and  it  was  held  that  in  such  cases  the  appellate  court  will  not  inter- 
fere. G.,  H.  &  S.  A.  Ry.  Co.  v.  Duelin,  86  T.  450  (25  S.  W.  Rep.  405). 


••'>.]  AROCMENT   OF   COUNSEL. 

?:  553.  Latitude  allowed  where  the  argument  is  confined  to  the  evi- 
dence. 

It  is  the  duty  of  the  court  to  confine  the  argument  of  o> 
any  >ta-_re.  to  the  evidence  before  the  jury;  but  with  the  prop; 
of  an  argument  upon  testimony  'which  has  been  adduced  tin*  court 
has  no  concern;  especially  when  the  opposing  counsel  has  the  ri^ht 
to  reply.1     It  is  said  that  reversals  will  not  be  had  merclv  because 
iliisti-v  in  argument  or  fallacious  reasoning  ujxm  the  facts, 
when  it  do.'s  not  appear  that  the  jury  were  prejudicial  tln-rehv; 
that  there  must  of  necessity  be  allowed  some  latitude  in  debate; 
that  an  attorney  may  discuss  his  case  from  an  erroneous  standstill t, 
but  his  errors  are  not  the  errors  of  the  court.'-' 

I'nder  the  rule  that  latitude  must  be  allowed  in  argument,  it  is 
difficult  in  some  cases  for  a  court  to  limit  it,  and  determine  what  is 
not  aro-ument  deducible  from  the  testimony,  and  what  are  merelv 
_eiated  deductions  from  the  testimony.  When  the  argument 
is  n»t  Uised  on  some  reasonable  view  of  the  testimony,  it  is  not 
permissible;  but  when  it  is  mere  exaggeration  of  a  feature  of  the 

upon  which  there  is  testimony,  the  court  cannot  inter' 
The  jury  must  be  left  to  judge  of  the  facts,  and  are  presumed  to  be 
competent  to  do  so,  notwithstanding  exaggerated  declamation  of 
conni 

It  is  the  province  of  the  jury  to  determine  what  facts  are  estab- 
lished and  what  they  prove,  and  the  court  should  not  undertake  t<> 
protect  them  by  giving  the  court's  view  of  the  weight  or  eftV 

•\  idence  by  restricting  argument  of  counsel  to  such  view.    The 
court  should  not  take  such  responsibility.     If  counsel  assert 
that  are  not  in  proof,  or  argue  issues  that  are  clearly  not  rais.nl  by 
pleading  or  proof,  the  court  may  interfere,  and  by  so  doing  correct 
tlu-  evil  that  may  have  occurred;  but  it  cannot  undertake  to  con- 
Hi..  1 I.  \-  s.   \    i;\.  Co.  v.  Duelin.  86  T.  450  (25  S.  W.  Rep.  406). 
-  M».  1'a.-.  Ky.  <'<>.  v.  Whit,.,  so  T.  •,>ir.'.     In  the  argument  «>f  tin-  case  GOOD* 
|.|;iinuir  expressed  regret  that  a  larger  sum  was  not  originally  rl.u;u.-,l  in  daui- 
thus  intimating  that  the  evidence  would  justify  the  awarding  of  a  largrr 
sum.  :in<l  it  was  ur^fl  that  for  this  a  n.-w  trial  should  have  been  granted.     A>- 
thi-n-  \va-»  r\  ii  IfiH  •••  to  support  tin-  vcnlirt.  and  a,s  tlu-  justut-'s  court  and  tl 
trirt  t-ourt  had   found  the  same  sum.  it  was  held  that  there  w««  no  re»- 
li.-lii-ve   that    tin'   jury    wen-    improperly    intlueiic-ed.     G.,  H.  &    ~ 
.I..hns.,n.  r.»S.  \V.  Rep.  867. 
In  a  suit  for  lilx-1  in  sen. ling  out  open  letters  through  a  "bad  debt 

i. mark-  of  plaint  in"*  conns.-!,  that  tin-  jury  sin  mid  giT*  a 

\rplict  tliat  would  teach  men  when  they  have  debts  to  collect  to  g<»  un.i  tlu- 
c.-:irt>  at  li.'ine  wlu-p-  then-  i  -  an   honest  judp>  and  jury,  and  not  try  to  collect 
l.\  -. -ii'linu'  such  scandalous  lih.-lst.ia  widow  woman,  thnmulm  i 
at  riii.-ap>.  are  ju.««tiliahle.     Hurton  v.  <  )'Ni.-ll.  •>  » 'iv.  A  pp.  •',: 
sprath.-i  \.  McClelland,  5-S  S.  \\ .  K.-p.  94;  Texas  Telegraph  A  T.  Co-  \ . 
\\ .  Rep.  258. 


524:  ARGUMENT  OF  COUNSEL.  [§§  554,  555. 

trol  the  logic  of  the  facts  in  evidence,  and  tell  the  jury  that  an  ar- 
gument on  the  facts  is  not  justifiable.1 

In  an  action  against  a  railway  company  for  damages  for  delay 
in  transporting  cattle,  defendant's  counsel  contended  in  argument 
that  the  contract  of  shipment  was  a  binding  contract.  In  reply  to 
this,  plaintiff's  counsel,  in  his  closing  argument,  said  that  railroads 
never  make  reasonable  contracts,  and  that  they  always  endeavor  to 
take  advantage,  and  that  they  usually  succeed,  etc.  This  was  held 
illegitimate,  and  a  sufficient  ground  for  reversal,  the  court  having 
refused  to  instruct  the  jury  to  disregard  it.3 

§  554.  Reply  to  improper  argument. 

The  rule  is  that  when  improper  language  is  used  in  response  to 
similar  language  used  by  the  adverse  counsel,  and  equally  unau- 
thorized, the  party  provoking  such  a  course  of  argument  will  not 
be  heard  to  complain  on  appeal ; 3  especially  where  it  does  not  ap- 
pear that  the  language  used  influenced  the  verdict.4  But  the  rule 
does  not  appear  to  be  well  nettled.  The  supreme  court  say  "  it  is 
not  thought  that  the  wrong  of  one  attorney  will  justify  a  like 
wrong  on  the  part  of  another  by  way  of  retaliation,  although  this 
court  would  not  hesitate  to  set  aside  a  verdict  which  had  been  in- 
duced by  language  not  justified  by  the  record,  when  the  opposing 
counsel  may  have  given  the  first  offense." 5 

S  565.  Prejudice  against  corporations. 

Judgments  are  frequently  reversed  in  cases  in  which  corpora- 
tions, and  especially  railroad  companies,  are  parties,  on  account  of 
language  calculated  to  arouse  the  prejudice  of  the  jury  against  cor- 
porations. The  cases  are  generally  for  damages  for  personal  in- 
juries, or  for  injuries  resulting  in  death,  the  object  being,  of  course, 
to  encourage  the  jury  in  giving  large  damages..  The  rules  guiding- 
the  appellate  court  in  such  cases  are  stated  as  follows: 

"  On  account  of  there  being  no  exact  method  of  estimating  the 
amount  of  such  damage  provided  b}^  the  law,  we  do  not  feel  author- 
ized to  set  aside  every  verdict  that  is  for  a  greater  amount  than  we 

1  Texas  Telegraph  &  T.  Co.  v.  Seiders,  29  S.  W.  Rep.  258;  Trinity  County  Lum- 
ber Co.  v.  Denham,  29  S.  W,  Rep,  553;  G,,  C,  &  S.  F,  Ry,  Co.  v.  Perry,  30  S.  W. 
Rep.  709. 

2  A.,  T.  &  S,  F.  Ry.  Co.  v,  Bryan,  28  S.  W.  Rep.  98.    Where  it  is  developed  by 
the  evidence  as  a  fact,  that  a  party  failed  to  offer  the  testimony  of  a  certain 
witness  in  support  of  other  testimony,  such  fact  is  a  legitimate  subject  of  com- 
ment in  argument,    Dittman  v.  Weiss,  31  S.  W,  Rep.  67. 

3  Tex,  &  Pac.  Ry.  Co.  v.  Garcia,  62  T,  285;  Heidenheimer  v,  Thomas,  63  T.  287; 
G.,  C.  &  S.  F.  Ry.  Co.  v.  Scott,  26  S.  W.  Rep.  995. 

« Willis  v.  McNatt,  75  T.  69  (12.  S,  W.  Rep.  478);  Paschal  v.  Owen,  77  T,  583  (14 
S.  W.  Rep.  203). 
5G,,  C.  &  S,  F.  Ry,  Co,  v,  Witte,  68  T,  295  (4  8,  W,  Rep,  490), 


•"0.]  AROl'MKN'T   OF  COUNSEL. 

would  have  given  as  an  original  question,  or  when  we  cannot  ac- 
count fur  it  from  the  evidence  when  the  question  has  been  pr«»|H-rlv 
submitted  to  the  jury.  But  in  all  such  cases  there  nn 
ground  to  believe  that  the  verdict  has  been  influenced  from  any 
improper  cause.  It  must  appear  that  the  cause  has  been  fairlv  sub- 
mitted to  the  jury  upon  the  law  and  evidence,  and  there  must  In- 
round  for  charging  that  the  verdict  has  been  influenced  b  - 
t  raucous  considerations  or  by  passion,  partiality  or  prejudice.  The 
\vnliet  is  larger  than  we  can  account  for  upon  any  view  of  the 
evidence.  The  remarks  of  counsel  excepted  to  were  not  justified 
or  called  for  by  anything  legitimately  belonging  to  the  case.  W.- 
cannot  say  that  they  did  not  improperly  prejudice  the  jury.  "\Vc 
cannot  say  that  they  exercised  no  influence  on  the  jury.  If  thev 
exercised  any  it  was  an  improper  one.  The  fact  that  we  have  no 
means,  and  that  the  jury  have  none,  of  arriving  at  the  exact  amount 
of  damages  in  such  cases  emphasizes  the  importance  of  guarding 
the  minds  of  the  jury  from  all  misleading  and  improper  influences 
and  appeals."  l 

§  556.  Statement  of  facts  not  in  evidence. 

Counsel  should  not  be  permitted  to  assert  material  facts,  perti- 
nent to  the  issues  in  the  case,  and  resting  upon  his  asserted  knowl- 
edge of  them,  where  he  has  not  testified  to  such  facts  as  a  witness.3 
The  argument  should  be  confined  by  the  court  to  the  discussion  of 
those  issues  made  by  the  pleadings  in  regard  to  which  some  evi- 
dence has  been  introduced.1 

i  Dillingham  *.  Scales.  78  T.  205  (14  a  W.  Rep.  568).    See  T.  &  St  L.  Ry.  Co.  r. 
Jarrell,  60  T.  268;  G.,  H.  &  S.  A.  Ry.  Co.  v.  Kutac,  72  T.  643  (11  &  W.  Rep. 
O.,  C.  &  S.  F.  Ry.  Co.  v.  Witte,  68  T.  295  (4  S.  W.  Rep.  490).    In  a  suit  for  dam- 
ages against  a  railroad  company,  the  statement  by  counsel  that  "  this  railroad 
is  a  monster,  wealthy  and  powerful,  more  powerful  than  any  individual  in  the 
state,  and  is  not  on  an  equality  with  any  private  citi2en,"  is  improper,  and  is 
suflli-ient  ground  for  reversal  if  it  should  appear  that  the  jury  was  probably  in- 
fluenced by  it    G.,  H.  &  S.  A.  Ry.  Co.  v.  Silegman,  23  S.  W.  K  p.  2iK 
to  permit  plaintiff's  counsel  to  say  to  the  jury:  "  It  is  a  part  of  the  contr 
railroad  man  that  he  must  swear  for  his  road  or  be  discharged."    > 
&  T.'Ry.  Co.  v.  Woods,  25  S.  W.  Rep.  741. 

In  a  suit  against  a  railroad  company  for  setting  fire,  where  defendant's  coun- 
sel had  asserted  the  equality  of  the  defendant  with  private  citizens  befot 
law,  a  remark  of  counsel,  excepted  to  and  unchecked  by  the  court,  thn- 
was  not  so,  that  defendant  had  the  right,  unlike  a  citizen,  to  condemn  *  grave* 
yard  and  disturb  the  resting  place  of  the  dead,  is  ground  for  reversal  on  appeal. 
Gulf.  C.  &  3.  F.  R  Co.  v.  Scott,  7  Civ.  App.  619  (26  a  W.  Rep.  W8X    See  St.  L. 
S.  W.  Ry.  Co,  v.  McLendon,  26  a  W.  Rep.  807. 

( •<>.  v.  M:ir*.l.-n.  1  App.  C.  C..  §  1001.    It  was  improp. •: 

counsel  to  state  to  the  jury  "that  lit-  had  drawn  the  petition  tt  in 

cases  not  so  bad  as  this,  and  had  put  the  amount  claimed  as  low  as  he  thought 
he  could."  He  was  in  effect  testifying  before  the  jury,  and  the  language  called 
for  more  from  the  court  than  a  mere  direction  to  the  jury  not  to  regard  it 
Fordyce  v.  Withers,  1  Civ.  App.  540  (80  a  W.  Rep.  760> 

•Taylor  v.  McNutt,  58  T.  71. 


526  ARGUMENT   OF   COUNSEL.  [§  557. 

It  seems  that  it  is  not  improper  for  counsel,  in  considering  the 
amount  of  damages  that  might  or  ought  to  be  allowed,  to  state  the 
amount  allowed  in  other  similar  cases  coining  under  his  observa- 
tion ; l  but  it  is  held  that  the  statement  by  counsel  in  closing  the  case 
that  "  the  plaintiff  recovered  a  judgment  in  this  case  on  a  former  trial 
hereof  on  the  same  proof  as  was  given  on  this  trial,"  is  good 
ground  for  reversal.2 

Statements  by  counsel  as  to  what  was  done  on  a  former  trial  of 
the  case,  with  a  view  to  creating  a  prejudice  against  the  opposite 
party,  should  not  be  permitted.8  But  the  courts  recognize  the  fact 
that  jury  trials  would  be  lamentable  failures  if  they  were  subject 
to  be  influenced  by  every  statement  of  counsel  outside  of  the  issues 
and  the  proof,  and  the  rule  is  not  to  reverse  unless  it  is  reasonably 
probable  that  the  statements  influenced  the  verdict.4 

§  557.  Reading  from  books. 

It  is  left  largely  to  the  trial  judges  to  determine  what  author- 
ities and  how  much  of  each  they  will  permit  to  be  read  to  them. 
If  in  any  case  it  is  apparent  that  the  purpose  is  to  influence  the 
jury  rather  than  to  inform  the  judge,  the  attempt  should  be 
promptly  rebuked.  But  such  practice  is  no  cause  for  reversal  un- 
less strong  grounds  be  shown  to  believe  that  it  improperly  influ- 
enced the  verdict.5  Essentially  the  same  ruling  is  made  in  some 
cases  on  the  reading  from  books  to  the  jury.8  As  a  general  rule  it 
is  held  to  be  a  matter  of  discretion  with  the  trial  judge  to  permit 
or  to  refuse  to  permit  counsel  to  read  from  books  of  law  during  the 
argument.  But  where  the  matter  read  is  calculated  to  have  the 

1  H.  &  T.  C.  Ry.  Ca  v.  Larkin,  64  T.  454, 

2  Attaway  v.  Mattox.  4  App.  C.  C.,  §  22;  At  wood  v.  Brooks,  4  App.  C.  C.,  §  89. 
3Delk  v.  Punchard,  64  T.  360. 

*  Welborne  v.  Downing,  73  T.  527  (11  S.  W.  Rep.  501).  In  this  case  it  is  held  to 
be  no  ground  for  reversal  that  an  attorney  for  appellee,  in  urging  his  client's 
claim  to  the  property  as  his  homestead,  said  "that  he  had  heard  a  lawyer  say 
this  morning  that  appellee  was  entitled  to  the  property  in  controversy  if  he  left 
so  much  as  a  blanket  thera" 

Counsel  for  appellee,  in  the  closing  argument,  addressing  the  jury  used  this 
language:  "This  case  was  brought  here  on  appeal  from  the  county  court,  was 
tried  and  appealed;  was  reversed  and  remanded,  and  tried  again  in  this  court, 
both  juries  finding  all  of  blocks  27  and  31,  together  with  improvements,  to  b3 
her  homestead;  "  and  after  exceptions  were  taken  to  the  remarks  counsel  again 
stated  to  the  jury  about  the  same  in  substance,  viz.,  "  that  two  juries  had  already 
found  this  property  to  be  the  old  lady's  homestead  and  he  expected  this  jury 
would  do  the  same."  It  not  appearing  probable  that  the  jury  were  influenced 
thereby,  the  language  used  was  no  ground  for  reversal  McLane  v.  Paschal,  74 
T.  20  (11  S.  W.  Rep.  837). 

&Mo.  Pac,  Ry.  Ca  v.  Lamothe,  76  T.  219  (13  S.  W.  Rep.  194);  W.  U.  TeL  Co.  v. 
Wingate,  6  Civ.  App.  394  (25  S.  W.  Rep.  439);  May  field  v.  Cotton,  37  T.  229. 

«  Britton  v.  Thrash,  1  App.  C.  C.,  §  1239;  Tex.  &  Pac.  Ry.  Ca  v.  Wills,  2  App. 
C.  C.,  §  798;  G.,  C.  &  S.  F.  Ry.  Ca  v.  Dunlap,  26  S.  W.  Rep*  655, 


§  557.]  ARGUMENT  OP  COUNSEL. 

e!fcct  of  evidence,  the  rule  does  not  apply  and  the  reading  should 
not  IK-  permitted.1  The  matter  read  and  the  comments  thereon 
should  not  he  permitted  if  not  justified  by  the  evidence.* 

The  privilege  of  counsel,  in  addressing  the  jury,  to  read  from  legal 

authorities  or  from  works  of  general  science,  is  declared  to  be  a 

vahiable  privilege  which  ought  not  to  be  abridged,  and  yet  so  liable 

t<>  abuse  as  to  be  properly  under  the  control  of  the  court  in  the 

rcise  of  a  sound  discretion.1 

1  Ilium  v.  Jones.  86  T.  492  (25  a  W.  Rep.  694). 

lo  v.  Fuller.  M  T.  fW  (19  a  W.  Rep.  616).    It  is  error  to  permit  coin 
to  tli.-  jury  report*  of  cases  decided  in  the  appellate  courts,  in  which  n  . 
proposition  of  law  therein  contained  is  controverted  on  trial,  for  the  men-  pur 
pose  of  making  comparison  of  the  facts  with  those  of  the  case  on  trial    W.  U. 
TeL  Co.  v.  Teague,  8  Civ.  App.  444  (27  a  W.  Rep.  958). 

Counsel  for  plaintiff,  over  defendant's  objection,  read  a  decision  of  the  su- 
preme court,  reading  the  amount  of  the  verdict  therein,  and  interjecting  remarks 
as  to  its  similarity  with  the  case  at  bar.    The  petition  was  for  $5.000.  the  \ 
in  the  case  read  was  for  $5,000,  and  the  jury  in  the  case  on  trial  ret  ur  net  I  | 
•  lu-t  for  $5,000.    It  was  held  that  the  cause  should  be  remanded  for  a  new  trial 
Dillingham  v.  Wood,  8  Civ.  App.  71  (27  a  W.  Rep.  1074). 

In  a  damage  suit  against  a  railway  company  for  personal  injuries,  counsel  for 
the  plaintiff,  in  his  opening  address  to  the  jury,  stated  to  the  jury  that  "he 
would  read  to  them  portions  of  the  opinions  of  the  supreme  court  of  Texas  for 
the  purpose  of  showing  them  that  large  verdicts  had  been  rendered  against 
railway  companies  for  personal  injuries."  To  this  statement,  and  the  proposed 
r  .cling,  the  defendant  objected,  and  the  objection  was  sustained.  Subsequently 
counsel  claimed  the  right  and  was  permitted  to  read,  as  part  of  hit  argument, 
two  opinions  of  the  supreme  court  in  cases  where  $10.000  damages  for  personal 
injuries  had  been  allowed  and  the  judgments  affirmed  Objection  was  made, 
and  it  was  held  that  the  action  of  the  trial  court  in  allowing  counsel  to  read  the 
opinions  as  part  of  his  argument  was  reversible  error.  O..  H.  &  a  A.  By.  Co, 
v.  Wesch,  85  T.  593  (21  a  W.  Rep.  62). 

» Wade  v.  De  Witt,  20  T.  89a  It  is  held  that  a  bill  of  exceptions  to  the  refusal 
of  the  court  to  permit  the  reading  of  a  legal  authority  or  work  of  science  must 
show  what  it  was  and  how  much  counsel  proposed  to  read, 


CHAPTER  XXXV. 


CHARGING  THE  JURY. 


i  The  subject  a  difficult  one. 

559.  Instructions,  when  given. 

560.  Charge  need  not  be  excepted  to. 

561.  Jury   may   take    charge    with 

them,  and  may  ask  additional 
instructions. 

562.  Requisites  of  charge. 

563.  On  the  weight  of  evidence. 

564  On  the  credibility  of  witnesses. 
G65.  Must  not  assume  controverted 
facts.- 

566.  Questions  of  law:  construction 

of  written  instruments. 

567.  On  the    preponderance  of  evi- 

dence. 

568.  Must  apply  to  facts  in  evidence. 

569.  Must  be  confined  to  the  issues. 

570.  Must  cover  all  the  issues. 

571.  Defining  the  issues. 


572.  Must  not  give  undue  prominence 

to  facts  and  issues. 

573.  When  pleadings  contain  several 

combinations  of  facts. 

574.  On  negligence. 

575.  Contributory  negligence. 

576.  As  to  damages. 

577.  Measure  and  elements  of  dam- 

ages. 

578.  Parties  may  ask  instructions;  if 

refused,    no    exceptions     re- 
quired. 

579.  Special  instructions  must  be  re- 

quested, when. 

580.  Need  not  be  repeated. 

581.  Misleading;  harmless  error. 

582.  How  charge  construed  in  deter- 

mining its  sufficiency  or  va- 
lidity. 

583.  Directing  a  verdict. 


£  558.  The  subject  a  difficult  one. 

In  any  trial  by  jury  it  may  become  necessary  and  proper  for  the 
court  to  state  to  the  jury  the  law  applicable  to  the  facts  of  the 
case,  as  shown  by  the  evidence.  To  write  a  proper  charge,  one 
that  will  stand  the  searching  criticism  of  the  judges  of  the  appel- 
late court,  requires  not  only  a  profound  knowledge  of  the  law  of  the 
case,  but  also  the  ability  to  use  the  English  language  accurately. 
It  frequently  happens  that  a  charge,  which  would  otherwise  have 
been  a  correct  statement  of  the  law,  is  spoiled  by  the  improper  use 
or  omission  of  a  word  or  a  qualifying  phrase..  Very  little  can  be 
given  in  a  work  on  practice  to  aid  the  courts,  beyond  a  statement  of 
mere  general  principles.  As  the  trial  judge  may  be  called  upon,  at 
any  time,  either  to  write  or  pass  upon  an  instruction  involving  a  state- 
ment of  any  given  branch  of  the  law  applicable  to  any  conceivable 
state  of  facts,  it  is  manifestly  impossible  to  give  illustrations  or 
precedents,  except,  perhaps,  in  the  way  of  definitions,  which  would 
be  of  any  practical  value.  There  will  be  found,  in  the  proper  place, 
a  few  definitions  and  illustrations  applicable  to  the  principles  in- 


MHHG  IIIK  ji'ia. 

'1  in  art  ions  for  damages  caused  by  negligence,1  but  beyond 
this  the  chapter  is  con  lined  to  a  statement  of  general  principles,  full 
,  it  is  behoved,  to  make  it  a  safe  and  convenient  guide. 


?'  559.  Instructions,  when  given. 

The  statute  contains  two  separate  articles,  as  follows: 

"  After  the  conclusion  of  the  argument  the  court  shall  read  to  the 
jury  the  eharires  and  instructions,  if  any,  under  the  provisions  of  law 
relating  thereto.2 

••  After  the  argument  of  a  cause  the  judge  may,  in  open  court,  de- 
liver a  charge  to  the  jury  on  the  law  of  the  case,  subject  to  the  re- 
strictions hereinafter  provide.: 

It  seems  that  the  above  articles  do  not  require  the  judge  to  charge 
the  jury  in  any  case.  If  he  gives  a  charge,  it  is  to  be  read  to  the 
jury  after  the  conclusion  of  the  argument.4  Failure  to  charge  the 
jury  is  not  necessarily  ground  for  reversal;  but  where,  from  the 
nature  of  the  case  before  the  jury,  it  is  apparent  that  a  proper  legal 
;  initiation  in  regard  to  evidence  before  them,  which  is  in  itself 
liable  to  mislead  them  into  giving  it  undue  weight,  is  essential  to 
enable  them  properly  to  apply  the  whole  evidence,  and  the  jury 
have  probably  been  misled  to  the  injury  of  one  of  the  parties  by  a 
failure  to  give  any  charge  touching  the  case,  a  new  trial  ought  to 
be  grant. 

£  560.  Charge  need  not  be  excepted  to. 

The  charge  of  the  court  must  be  tiled  by  the  clerk  and  will  con- 
stitute a  part  of  the  record  of  the  cause.  It  will  be  regarded  as  ex- 
eepted  to,  and  subject  to  revision  for  errors  therein,  without  the 
necessity  of  taking  any  bill  of  exception  thereto.*  This  rule  applies 
to  charges  that  are  asked  and  refused.7  The  ruling  of  the  court 
in  the  giving,  refusing,  or  qualifying  instructions  to  the  jury,  is  re- 
garded as  excepted  to  in  all  cases.8 

£561.  Jury  may  take  charge  with  them,  and  may  ask  additional  In- 
structions. 

The  charge  and  instructions  given  to  the  jury  may  be  carried 

with  them  in  their  retirement,  and  an  additional  charge  or  instruc- 

tion  may  be  given  them   upon  any  question  of  1;:  ^  in   the 

.  in  conformity  with  the  rules  piv>eribed  by  law,  upon  the  ap- 

«   i&-  fro. 

2  R  S.  1300. 
-RS.  IS  Hi. 

<  Berry  v.  TVxas  &  X.  <  >   1:  v.  C>..  7,1  T.  020  (10  S.  W.  Rep.  738). 
»L&  i;.  N.  Ry.Ca  v.  l'!iiii|».  r,::  T 
*RS.  1318. 

l.'ul.-  :•»:  i;.  s.  1 

«R.  S.  i:          -  r.ll.i>  <>r   i:\.-KITIOXS, 

34 


530  CHARGING   THE   JURY.  [§§  502,  563, 

plication  of  the  jury  therefor  in  open  court.1  They  must  appear 
before  the  judge  in  open  court  in  a  body,  and  through  their  fore- 
man state  to  the  court,  either  verbally  or  in  writing,  the  particular 
question  of  law  upon  which  they  desire  further  instruction,  and 
the  court  must  give  such  instruction  in  writing;  but  no  instruction 
shall  be  given  except  upon  the  particular  question  on  which,  it  is 
asked.2 

§  562.  Requisites  of  charge. 

The  statute  provides  as  follows :  "  The  charge  shall  be  in  writing 
and  signed  by  the  judge;3  he  shall  read  it  to  the  jury  in  the  precise 
words  in  which  it  is  written;  .he  shall  not  charge  or  comment  on 
the  weight  of  evidence ;  he  shall  so  frame  the  charge  as  to  distinctly 
separate  the  questions  of  law  from  the  questions  of  fact;  he  shall 
decide  on  and  instruct  the  jury  as  to  the  law  arising  on  the  facts, 
and  shall  submit  all  controverted  questions  of  fact  solely -to  the  de- 
cision of  the  jury." 4 

* 

§  563.  On  the  weight  of  evidence. 

The  judge  must  not  charge  or  comment  on  the  weight  of  evi- 
dence.5 The  statute  is  mandatory  and  peremptory.  It  leaves  no- 
discretion  to  the  judge  as  to  whether  or  not  he  shall  charge  or  com- 
ment on  the  weight  of  evidence,  or  as  to  whether  or  not  he  shall 
submit  questions  of  fact  solely  to  the  jury.  The  statute  presumes 
that  the  jury  is  as  competent  to  decide  questions  of  fact  as  the  judge 
is  to  determine  questions  of  law.6  The  Code  of  Criminal  Procedure 
provides7  that  "  the  jury  in  all  cases  are  the  exclusive  judges  of  the 
facts  proved  and  of  the  weight  to  be  given  to  the  testimony,  except 
where  it  is  provided  by  law  that  proof  of  any  particular  fact  is  to 
be  taken  either  as  conclusive  or  presumptive  proof  of  the  existence 
of  another  fact,  or  where  the  law  directs  that  a  certain  degree  of 

i  R  S.  1303, 1321. 

2R  S.  1308.  Charges  asked  and  not  given  should  not  be  taken  by  the  jury  in 
their  retirement.  Rule  62. 

3  The  charge  need  not  be  in  writing;  the  provision  of  the  statute  is  directory, 
O..  H.  &  S.  A.  Ry.  Co.  v.  Dunlevy,  56  T.  256;  Reid  v.  Reid,  11  T.  585;  Boone  v. 
Thompson,  17  T.  606;  Chapman  v.  Sneed,  17  T.  428;  G.,  C.  &  S.  F.  Ry.  Co.  v.  Holt, 
1  App.  C.  C.,  §  835;  Toby  v.  Heidenheimer,  1  App.  C.  C.,  §  795.  A  failure  of  the 
judge  to  sign  his  charge  is  not  reversible  error;  especially  where  the  charge  is 
filed  by  the  clerk,  and  thus  fully  identified.  Parker  v.  Chancellor,  78  T.  524  (15 
S.  W.  Rep.  157).  In  Longine  v.  Ward,  1  App.  C.  C.,  §  522,  it  is  held  that  the  judge 
ought  to  sign  the  charge.  And  see  Barnes  v.  Jamison,  24  T.  362.  In  Levy  v, 
McDowell,  45  T.  220,  it  is  said  that  the  giving  of  a  verbal  charge  is  error. 

«RS.  1317. 

»  R.  S.  1317. 

•T.  &  P.  Ry.  Co.  v.  Murphy,  46  T.  357. 

7  Code  Crim.  Proc.,  art.  766. 


::<.INl.       IIIK     .! 

wejo-ht   is  to  lie  attached  TO  ;i  certain  species  .,; 
said  that  this  fairly  states  the  rule  in  civil  ett 

The  rule  does  not    preclude  the  judge  from  assuming  as  tru- 
the  language  u>ed  in  his  chai_  ,,id  in  re- 

gard to  which  there  is  no  conflict  in  the  evidence.      He  .should  not 
assume  as  .loiil.tful  that  which  is  clear  and  indisputable,  . 
hypothesis  at  variance  with  an  estal.lished  fact.     It   is  only  v 
theiv  i>adoulit  arising  from  the  evidence  thai  tho  jury  is  reouir 

simony. and  it  is  only  where  such  doubt  n  that 

rale  which  forbids  a  judge  to  charge  upon  the  weight  of  evi- 
«le!ice  has  .implication.-'  A  charge  is  not  on  the  weight  of  evidence 
unless  it  is  fairly  susceptible  of  a  construction  which  would  indicate 
to  the  jury  that  in  the  opinion  of  the  court  some  oo 
had  lii-en  proved,  or  from  which  the  opinion  of  the  court  on  >uch 
might  l>e  inferred.1 

The  court   may  in  some  cases  instruct  the  jury  which 
entitled  to  their  verdict.     If  there  is  no  evidence,  or  if  the 
l>e  all  on  one  side,  and  \»-  sufficient,  <>r  when  the  <|iiestion  is  purely 
of  law,  and  the  verdict  is  a  mere  matter  of  form,  such  an  in- 
struction may  he  given.4     But  when,  upon  an  issue  pending  In-fore 
a  jury,  there  is  evidence  in  favor  of  a  party,  it  is  error  for  the 
court  to  instruct  the  jury  to  find  against  him,  though  the  w. 

i  Stooksbury  v.  Swan,  85  T.  W.  Rep.  963). 

nliain  v.  Trinity  County  Lumber  Co.,  73  T.  78  (11  a  W.  1, 
irison.  1?  T.  :J?2.     The   enumeration   of  facts  ami  a  declaration   th:r 
idges  of  fraud  should  not  be  made  in  a  charge  to  a  jury  if  there  be  a  oon- 

•  ,-iru'  from  the  evidence  as  to  the  existence  of  the  enumerated  tacts; 
ami  it  may  I*-  c|U"M  \»w<\  even  when  tin-  farts  are  uncuntrovert>-<l  wh.-th.-r 

itute  wliirh  forbids  a  charge  upon  tlie  weight  i>fe\:  i  a  charge 

slmul'l  !>••  vciven  in  any  casi-.  (-\  ,-n  if  cnupleil  witli  a  further  rharj  .^  the 

jury  to  look  to  all  the  evidence  and  tie  refr..m  to  determine  whether  fra  . 
FreiKer-  v.  Kivil-.-r-.  71  T.  l',"J  1 1 1  S.  \V.  !;,-p.  ! 

II-.  f.'.l  T.  f.s;,  ,7  S.  \V.  I.'.  | 

a>-ume  as  true  a  fact  controverted  l>y  the  evi.l.-ip  •    undue  promioenoe 

to  nor  intimate  an  opinion  u|«m  the  weight  of  the  testimony.     It  \\as  th.  i 
im|uo|HT  to  instruct  the  jury  that  "an  oppr..l,noiis  epith. •'.  :•£  tlie  idea 

of  a  lack  of  chastity  would  to  a  wanton  cause  no  pain,  while  appli.-d  to  a  puro 
and  gentle  wife,  no  tongue  could  tell  the  anguish,  the  shame,  the  -*-nse  of  humil- 
iation it  would  hriiiK."  Hanna  v.  Hamia.  ::t'i\.  \p:  ,*0)b 

When  a  party  has,  hy  the   introdurtion   of  title    pap- 
connected  chain  of  vali-1  tran-fers  to  land  from  and  under  the   s.!\. 
the  soil  down  to  himself,  except  one   link  in  the  chain,  which  was  suppl 
undisputed  heirship  from  one  in  whom  title  had  vested,  an   instruction  • 
jury  that  surh  j>arty  had  shown  title  to  the  land  is  not  a  charge  i: 

•  .  hut  a  projMT  charge  ii|K>n   the  legal  effect  of  u  i  testH 
inony.     Teal  v.  T-rrell.  .>  T.   . 

UY  H)5;  Teal  v.  Terrell.  .V  T.  '.v.7:  Eanon  T. 

Eason.  f,i  ]                  t-ofn.  i\  \  <  arlton,56  T.  881;  Siringfellow  T.  Montgomery, 

91  T.  B40;  •    :  •  vatcer 
-•54). 


532  CHARGING   THE   JUKY.  [§  563. 

•of  the  evidence  may  be  against  him : :  that  is,  if  there  is  some  evi- 
dence tending  to  prove  an  issue,  it  must  be  left  to  the  jury.  The 
•court  may  properly  direct  a  verdict  only  when  there  is  no  evidence 
tending  to  establish  the  fact.2  When  there  is  no  evidence  except 
that  which  establishes  facts,  and  a  conclusion  therefrom  in  favor  of 
one  party,  it  is  not  error  to  instruct  the  jury  to  return  a  verdict  for 
such  party ;  but  though  there  may  be  no  controversy  as  to  the  ex- 
istence of  facts,  yet  when  the  conclusion  to  be  drawn  from  them  is 
the  matter  in  dispute,  it  is  error  to  direct  a  verdict  for  either  party.3 
It  is  proper,  under  the  practice  in  this  state,  for  the  court  to  in- 
struct the  jury  that  a  fact  proved  on  one  side,  with  no  conflicting 
proof  on  the  other,  is  an  established  fact.  But  when,  though  there 
may  be  no  conflict  upon  the  circumstances  in  evidence,  their  suffi- 
ciency to  establish  another  fact  is  an  issue  before  the  jury,  the  court 
ought  not  to  prejudice  their  determination  by  telling  them  what 
might  be  considered  a  prima  facie  case;  that  would  be  fixing  the 
weight  of  a  portion  of  the  evidence,  and  would  be  an  unwarranted 
invasion  of  the  jury's  province.4 

Any  intimation  from  the  judge  &s  to  the  weight  of  any  portion 
of  the  evidence  is  prohibited.5  A  charge  referring  to  acts  or  decla- 
rations in  evidence,  in  order  to  make  clear  the  rules  of  law  which 
'limit  their  effect,  is  not  a  charge  on  the  weight  of  evidence.  A 
charge  which  states  the  law  applicable  to  each  state  of  facts  which 
the  evidence  tends  to  establish  pro  and  con  is  always  proper;  and 
-even  if  a  charge  is  not  strictly  applicable  to  the  case  made  by  the 

i  Potter  v.  Wheat,  53  T.  401. 

2Newberger  v.  Heintze,  3  Civ.  App.  259  (22  S.  W.  Rep.  867).  It  is  the  duty  of 
the  judge  to  declare  negatively  that  there  is  no  evidence  to  go  to  the  jury,  but 
not  affirmatively  that  a  certain  issue  is  proved.  S.  A.  &  A.  P.  Ry.  Co.  v.  Long, 
4  Civ.  App.  497  (23  S.  W.  Rep.  499). 

*  Supreme  Council  of  A.  L.  of  H.  v.  Anderson,  61  T.  296.     Whether  there  has 
been  evidence  of  incompetency,  or  whether  there  were  circumstances  which 
•might  be  considered,  in  connection  with  such  evidence,  sufficient  to  show  in- 
•couipetency,  are  questions  exclusively  for  the  jury  to  determine;  and  a  charge 
which  assumes  the  existence  of  such  evidence  and  of  such  circumstances  vio- 
lates the  rule  which  forbids  a  judge  to  charge  upon  the  weight  of  evidence. 
Ma  Pac.  Ry.  Co.  v.  Christman,  65  T.  369. 

*  Beaumont  Pasture  Co.  v.  Preston.  65  T.  448.     It  is  for  the  court  to  determine 
the  admissibility  of  evidence.     It  also  has  the  power,  on  a  motion  for  new  trial, 
-to  declare  whether  sufficient  evidence  has  been  offered,  and  this  power  should 
:*>e  judiciously  exercised;  but  a  charge  which,  in  effect,  may  induce  the  jury  to 

lieJJi.-ve  that  in  the  opinion  of  the  judge  there  is  evidence  sufficient  to  prove,  or 
strongly  tending  to  prove,  a  controverted  fact,  is  objectionable.  Mo.  Pac.  Ry. 
•Co.  v.  Christman,  65  T.  369.  A  charge  which  is  so  framed  that  the  jury  might 
have  inferred  from  it  the  opinion  of  the  court  on  a  material  issue  of  fact,  as  to 
>which  there  was  conflicting  evidence,  is  erroneous.  Altgelt  v.  Brister.  57  T. 
ri32. 

*Mayo  v.  Tudor,  74  T.  471  (12  S.  W.  Rep.  117). 


CHARGING    THE   j: 

evidence,  if  there  is  nothing  to  induce  the  belief  that  the  jury  may 
have  boen  misled  by  it,  no  ground  for  reversal  ex: 

The  court  may  inform  the  jury  of  the  purpose  for  which 
dence  has  been  admitted.-' 

The  rule  is  settled  in  this  state  that  any  charge  as  to  a  presump- 
tion arising  from  a  given  state  of  facts,  unless  in  those  cases  in 
which  the  law  raises  a  conclusive  presumption,  in  the  natur 
things,  is  a   charge  upon  the  weight  of  evidence.1     When  a  judge 
instructs  a  jury  that  a  given  fact  will  be  presumed,  he  must  lx»  un- 
derstood to  mean  that  the  fact  is  to  be  taken  as  established  — a  re- 
sult which  cannot  be  reached  except  in  those  cases  in  which  the 
presumption  is  said  to  be  of  law,  and  therefore  conclusive,  other- 
rh;m  by  weighing  the  evidence  ami  therefrom  determining 
•  •nee  or  non-existence  of  the  fact.     This  is  the  work  of  the  jury. 
An  instruction  as  to  such  presumption  of  fact  is  error.     It  has  ; 
frequently  held  in  this  state  that  a  charge  which  in  effect  informed 
a  jury  that  the  law  presumed  the  existence  of  some  fact  from  the 
•nee  of  others  is  a  charge  upon  the  weight  of  evide'i.-,-,  ami 
therefore  improper;  unless  it  be  in  those  cases  in  which  the  pro- 
sumption  is  said  to  be  one  of  law,  or  one  of  fact  required  by 
itive  law  but  rebuttable.     In  all  cases,  the  existence  or  non-« 
ence  of  the  facts  the  evidence  tends  to  pro\  '.\  as  the  - 

of  the  fact  to  be  implied  from  other  facts,  must  be  left  to  th« 
termination  of  the  jury.     An  instruction  should  not  conv.-y  to  the 
minds  of  the  jury  an  impression  that  the  law  or  the  judge  attaches 
cei-tain  weight  to  particular  testimony,  except  in  the  instances  be- 
fore stated.4 

i  Jacobs  v.  Totty,  76  T.  343  (13  S.  W.  Rep.  37 -J '.     It  is  ordinarih 
tli.-  charge  of  the  court  to  inform  the  jury  what  th«-  issues  for  t  initia- 

tion ar<\  without  attempting  to  explain  what  are  not  issues.     Sin  I 
may  impr.'»s  n]>on  the  jury  the  belief  that  the  court  <M  ws«« 

Jit  of  ••vidi.-nr".  and  so  l.e  ujH.ntlu-  weight  •  •  i  lannagan 

-worthy.  1  »'iv.  Aj.p.  17"  (W  S.  W.  Rep.  839). 
-'  How.Tton  v.    Holt.  •_>::  T.  51;  Goodbar  v.  National  Bank,  78  T.  401  (14  &  W. 

1!  •miii  v.  Hanna.  BCSr,  App.  :>1  (SI  s.  XV.  11,'p.  :e»  :  H.  Ht  r.  W,-' 
Bferfagv.  a  xv.  K-p-  '»>:  «  lay  Ca  L.  &  C.t 

rot 

,k-lmry  v.  Swan.  V,  T.  .V,:;  ,-j_>  s   \V.  Ren.  963).     In  this  c*f> 
ehar-.-l :   "ItM  a  ^'-m-nil  ruh-  of  law  that  a.-ts  which  purj^  >l 

by  piihli.-  ofti.-.-r-  in  tli.-ir  ofli.-ial  i-apanty  an. I   within   thr   M-OJH-  ,-f  thnr  .luly 
will  l»e  presumed  to  have  been  regular  and  in  a.  « itli  their  aut' 

until  tlif  i-ofitrary  ap|M-ars."     Tlii-* '-liari:''  r--f'Tr-«|  to  a  notarial  seal.  <>i  u  ! 
surh  seal  attest<-.l  th-  notarial  «••  rtitu-.n.   ..f  privy  arkm.w! 
in  clT.M-ta  .-har.^-  that  tli.-  j.a!  in  r\id.-in-.-  was  jtriinn 

that  th«- otliecr  had  atlixgd  to  his  ,-,-rt  ificate  his  aeai  TV  law.     This  w«* 

instructing  UJMHI  l\\>-  wciu'lit  of  evidt-nce. 

wliidi  din-rts  thf  att-ntion  of  th--  jury  to  a  feature  of  th. 
sented  on  ronMirtiriK  ••vid.-n<-«-  und.-r  th  :  hout  assumiiiK  that 


534  CHARGING   THE   JUKY'.  [§  56i. 

s  564.  On  the  credibility  of  witnesses. 

A  charge  to  the  effect  that  the  jury  are  the  exclusive  judges  of 
i  he  credibility  of  the  witnesses  and  the  weight  to  be  given  to 
their  testimony  is  correct  and  proper,  and  might  be  given  in  any 
case.  It  embodies  a  truism  of  the  law.  It  is  not  calculated  to 
lead  the  jury  to  believe  that  some  of  the  witnesses  are  unworthy 
of  credit.1  Where  such  a  charge  is  given,  a  refusal  to  charge  that 
whore  there  is  a  conflict  of  evidence  credit  is  to  be  given  to  the 
witnesses  most  entitled  to  it  is  not  error,2  but  it  is  not  error  to  add 
the  following:  "If  there  is  a  conflict  in  the  testimony  you  must 
reconcile  it  if  you  can;  if  not,  you  may  believe  or  disbelieve  any 
witnesses,  according  as  you  may  or  may  not  think  them  entitled  to 
credit."  Such  a  charge  does  not  authorize  the  jury  arbitrarily  to 
discredit  any  witness,  nor  does  it  undertake  to  instruct  them  upon 
what  particular  ground  they  might  discredit  a  witness;  it  conveys 
no  intimation  that  there  is  a  reason  for  discrediting  the  witnesses 
of  the  one  or  the  c  taer  party.3 

The  court  gave  the  following  charge:  "  In  determining  on  which 
side  the  preponderance  is,  the  jury  should  take  into  consideration 
the  opportunities  of  the  several  witnesses  of  seeing  and  knowing 
the  things  about  which  they  testified,  their  interest  or  want  of  in- 
terest, if  any,  in  the  result  of  the  suit,  the  probability  or  improba- 
bility of  the  truth  of  their  several  statements,  and  from  all  these 
circumstances  determine  upon  which  side  is  the  weight  or  prepon- 
derance of  the  testimony."  It  is  said  that  the  effect  of  such  an  in- 
struction is  to  exclude  from  the  consideration  of  the  jury  many 
things  proper  to  be  considered;  that  it  is  doubtful  whether  such  a 

it  is  established  by  evidence,  but  for  the  purpose  of  announcing  the  law  appli- 
cable thereto,  is  not  a  charge  on  the  weight  of  evidence.  Owens  v.  Railway  Co., 
67  T.  679  (4  S.  W.  Rep.  593).  It  is  error  to  recite  the  evidence  and  call  the  at- 
tention of  the  jury  to  particular  portions  of  it,  and  tell  them  that  from  such 
evidence  they  might  presume  a  certain  fact  to  exist.  This  would  be  a  charge 
upon  the  weight  of  evidence.  Hammond  v.  Coursey,  2  U.  C.  29.  A  charge 
which  tends  to  induce  belief  that  facts  recited  in  it  are  sufficient  to  authorize  a 
conclusion  which  the  law  does  not  attach  to  them  is  error.  Emphasizing,  by 
repetition,  an  idea  already  conveyed  in  a  charge  is  also  error,  and  may  be  as 
hurtful  as  a  charge  on  the  weight  of  evidence.  Frisby  v.  Withers,  61  T.  134. 

Where  an  issue  is  made  as  to  the  sanity  of  a  grantor  at  the  time  of  executing 
a  conveyance,  it  is  error  to  charge  that  there  is  any  presumption  on  the  ques- 
tion as  a  matter  of  law.  The  question  is  one  fact  for  the  jury.  Rogers  v.  Arm- 
strong, 30  S.  W.  Rep.  848,  citing  Railway  Co.  v.  Brazzill,  72  T."  233  (10  S.  W.  Rep. 
403). 

1  ( ;..  H.  &  S.  A.  Ry.  Co.  v.  Davis,  4  Civ.  App.  468  (23  S.  W.  Rep.  301). 

-  Winkler  v.  Winkler,  26  S.  W.  Rep.  893. 

1  Liverpool  &  L.  &  G.  Ins.  Co.  v.  Ende,  65  T.  118.  A  charge  which  in  effect  in- 
forms the  jury  that  they  are  at  liberty  to  believe  or  not  facts  disclosed  in  an 
official  exhibit  from  the  books  of  the  state  comptroller's  office,  properly  in  evi- 
dence before  them,  in  a  case  where  no  issue  of  forgery  thereof  was  properly 
raised,  is  error.  Fraiikland  v.  Tiernan,  63  T.  92. 


§565.]  CHARGING    THE   J 


should  ever  be  given,  but  if  given  it  should  go  so  far  as  to 

include  all  the  circumstances  necessarily  hearini:  upon  the  tjiiestion.1 
A  chanr-of  the  court  to  the  etlVct  that,  although  a  witness  is  neither 
discredited  nor  contradicted,  the  jury  may  discredit  him  on  account 
of  aurndunt  cii-c  •uiiistaiu  •••>,  is  error,  being  a  charge  on  the  weight 
of  evidence.  Any  charge  which  informs  a  jurv  that  they  are  at 
lilierty  to  disregard  the  testimony  of  a  witness  under  a  given  state 
of  facts,  without  exercising  their  own  judgment  as  to  the  credi- 
bility <>f  the  witnesses,  based  upon  all  they  may  see  and  hear 
iVoin  witnesses  during  the  trial,  violates  the  rule;  and  the  objec- 
tion becomes  stronger  when  the  jury  are  told  that  they  mav  disre- 
gard the  statements  of  a  witness  on  account  of  "attendant  circum- 
stances," without  reference  to  their  character.* 

£  565.  Must  not  assume  controverted  facts. 

All  controverted  questions  of  fact  must  be  submitted  solely  to  the 
decision  of  the  jury.3  The  charge  must  not  assume  a  fact  not  in 
evidence,4  nor  that  a  controverted  fact  has  been  proved  or  estab- 
lished.5 Where  there  is  no  conflict  in  the  evidence  the  court  may 

1  Eddy  v.  Lowry,  24  &  W.  Rep.  1076. 

2  Dwyer  v.  Bassett,  63  T.  274.    The  court  charged  that  a  witness  might  be  di* 
credited  if  it  be  shown  that  he  had  sworn  falsely  in  the  case,  or  made  contra* 
dictory  statements,  under  oath,  upon  material  points,  as  well  as  by  introducing 
witnesses  who  swear  that  his  reputation  for  truth  and  veracity  is  bad;  and  if  it 
appeared  to  the  jury  from  all  the  circumstances  proved  that  the  witness  had 
sworn  falsely  upon  one  or  more  material  points,  or  that  In-  had  contradicted  him- 
self, that  they  should  consider  the  same  in  determining  the  weight  to  be  given 
t  .  his  evidence;  that  the  legal  effect  of  such  false  swearing  would  be  to  impair 
the  credibility  of  the  witness,  but  that  they  must  determine  the  weight  to  be 
Driven  to  his  evidence.     This  was  not  a  charge  on  the  weight  of  evidence. 

l.-s  v.  Glasgow,  2  U.  C.  711. 

It  was  shown  during  the  progress  of  a  cause  that  the  plaintiff,  who  offered 
himself  as  ,-i  witness,  had  been  convicted  of  a  felony,  and  was  afterwards  par- 
doned by  the  governor.  The  jury  was  instructed  that  "the  proclamation  of  the 
governor  renders  the  plaintiff  a  competent  witness,  leaving  Ins  credibility  to  be 
determine.  1  by  you  from  all  tin-  f-ict>  and  circumstances  in  evidence."  Thi» 
was  not  ;i  ,  h.ti  -••  on  tin-  weight  of  evidence.  Costley  v.  Railway  Co.,  70  T.  112 
<8S.  \V.  Rep.  111.. 

The  appellee  was  the  only  witness  examined  who  had  a  pecuniary  interest  in 
a  suit  on  trial  in  which  tin-  following  charge  was  asked:     "In  determining  the 
credibility  of  the  witnesses   and  the  weight  you  should  give  thei 
are  authori/.ed  (,,  consider  tin-  interest  which  Midi  witnesses  have  in  the  n 
in  cont  rovei-sy.  and  tlieir  demeanor  and  manner  of  testifying  upon  the  stand." 
The  diar-.    \\.i-   properly  re!  used.     It  virtually  instructed  the  jury  to  consider 
(lie   int.-r.-t    <>!  the  witn.-sx  m  d.-tenninin-  whether  they  would  believe  his  tes- 
timony, an  I  would  h:i\.-   be.  -i.  on   the  weight  of  evidence.     Willie  Y. 

WhitriU,  »;:  T.  ••,::!  ,i  s.  \v.  i; 

SR.  H.  W7. 

<Flan.-iu.in  v.  Bo-ire^.-ir,  T.  ::::i:  Hicks  \.  H.iiley.  10  T.  229;  Hatch  v.  De  La 
*;.i./.;..  -"J  T.  i;r.;  Austin  v.  Talk.  '.V,  T.  1J7. 

1  1.  &  T.  C.  Ry.  to.  %.  Nixon,  M  T.  1'J:  Willis  v.  Hudson,  73  T.  588  (10  S.  W. 


530  CHARGING    THE   JURY.  [§  566, 

assume  a  fact  thus  established  as  proved,  in  cases  in  which  but  one 
conclusion  could  be  reached  from  the  evidence;  it  is  not  proper  to 
submit  as  an  issue  a  matter  about  which  there  is  no  controversy ; 
the  charge  should  proceed  upon  the  theory  that  the  fact  is  conceded 
or  proved.1  There  is  no  issue  of  fact  where  the  evidence  is  all  on 
one  side.2 

£  566.  Questions  of  law;  construction  of  written  instruments. 

The  judge  must  so  frame  the  charge  as  to  distinctly  separate  the 
questions  of  law  from  the  questions  of  fact;  he  must  decide  on  and 
instruct  the  jury  as  to  the  law  arising  on  the  facts,  and  must  submit 
all  controverted  questions  of  fact  solely  to  the  decision  of  the  jury.* 
A  charge  which  determines  both  questions  of  law  and  questions  of 
fact,  without  separating  them,  and  without  submitting  the  questions 
of  fact  to  the  decision  of  the  jury,  is  erroneous.4 

It  is  the  duty  of  the  court  to  charge  as  to  the  presumptions  of 
law  upon  the  facts  in  evidence.  The  presumptions  of  law  are  re- 
duced to  fixed  rules,  and  constitute  a  branch  of  the  particular  sys- 
tem of  jurisprudence  to  which  they  belong.  It  is  not  required  that 
the  jury  should  be  absolutely  controlled  by  these  presumptions, 
unless  they  belong  to  the  class  of  conclusive  presumptions;  but  they 
are  so  far  binding  upon  them  as  to  make  a  prima  facie  case  upon 
which  they  should  find,  unless  the  same  is  satisfactorily  rebutted, 
and  for  a  disregard  of  which,  by  the  verdict,  the  court  is  authorized 
to  set  it  aside.5  A  charge  ought  to  be  given  that  presumptions  of 
law  are  overcome  by  facts  which  prove  the  contrary.6 

Upon  an  issue  as  to  a  law  of  another  state  or  country,  the  judge 
is  to  hear  testimony  and  give  his  opinion  in  his  charge  to  the  jury.7 

Rep.  713);  Overall  v.  Armstrong,  25  S.  W.  Rep.  440;  T.  &  P.  Ey.  Co.  v.  Lanham, 
1  App.  C.  C.,  §  251. 

iGulf,  W.  T.  &  P.  Ry.  Co.  v.  Cornell.  84  T.  541  (19  S.  W.  Rep.  703):  I.  &  G.  N. 
Ry.  Co.  v.  Stewart,  57  T.  166;  Bonner  v.  Green,  6  Civ.  App.  96  (24  S.  W.  Rep. 
835);  Floyd  v.  Efron,  62  T.  221;  Mo.  Pac.  Ry.  Co.  v.  Platzer,  73  T.  117  (11  S.  W. 
Rep.  160);  Hunnicutt.  v.  State,  75  T.  233  (12  S.  W.  Rep.  108);  Tex.  Cent.  Ry.  Co. 
T.  Rowland,  3  Civ.  App.  158  (22  S.  W.  Rep.  134);  Voss  v.  Feurraann,  23  S.  W.  Rep, 
9J6;  G..  C.  &  S.  F.  Ry.  Co.  v.  Pierce,  25  S.  W.  Rep.  1052;  McFaddin  v.  Schill,  84 
T.  77  (19  S.  W.  Rep.  368);  Mo.  Pac.  Ry.  Co.  v.  James,  10  S.  W.  Rep.  332;  W.  U. 
Tel.  Co.  v.  Cooper,  20  S.  W.  Rep.  47.  The  judgment  will  not  be  reversed  if  the 
error  is  in  favor  of  the  complaining  party.  Ft.  Worth  Pub.  Co.  v.  Hitson,  80  T. 
216  (14  S.  W.  Rep.  843). 

2G.,  C.  &  S.  F.  Ry.  Co.  v.  Dorsey,  66  T.  148  (18  S.  W.  Rep.  444).  Where  one 
ground  of  negligence  alleged  in  a  petition  is  negatived  by  uncontradicted  evi- 
dence, it  is  reversible  error  to  submit  that  issue  to  the  jury.  Tex.  &  Pac.  Ry, 
Co.  v.  McCoy,  31  S.  W.  Rep.  304. 

•»R,S.  1317. 

4  Rogers  v.  Broadnax,  24  T.  538. 

6  Johnson  v.  Timmons,  50  T.  521. 

6  Graham  v.  Hawkins,  38  T.  628. 

7  Andrews  v.  Hoxie,  5  T.  171;  Willard  v.  Conduit,  10  T.  2ia 


•'•'».]  i  iiAi:c.i\«,    -Mil:   .n  i:-,  . 

It  is  the  duty  of  the  court  to  construe  written  instruments,  and  to 
instruct  the  jury  as  t<>  their  leiral  effect.1  If  there  is  no  ainhi^uitv 
in  an  instrument,  ami  the  intention  of  the  parties  may  be  ascertained 
from  its  terms  without  explanation,  it  is  the  duty  of  the  court  to 
construe  it  for  the  jury,  and  to  instruct  them  as  to  the  rights  of  the 
parties.-  After  the  meaning  of  the  contract  lias  lieen  de<-l.uvd,  the 
question  of  a  compliance  with  its  terms  is  for  the  jm 

It  is  the  duty  of  the  court  to  determine  whether  an  instrument 
has  le.iral  etl'ect  and  what  such  legal  effect  is.  And  where  the  terms 
of  an  instrument  showed  it  to  be  a  will,  the  court  should  have  to 
instructed  the  jury;  and  it  was  error  to  submit  to  them  the  ques- 
tion whether  it  was  a  will  or  a  deed.'  Where  a  provision  of  a  eon- 
tract  is  relied  upon,  and  is  proved  to  lie  in  the  contract,  the  court 
should  not  submit  to  the  jury  the  question  whether  it  is  there  or 
not;  it  should  simply  call  their  attention  to  it,  and  charge  the  law, 
in  connection  with  other  facts.9 


Antonio  v.  Lewis,  9  T.  69;  Taliaferro  v.  Cundiff,  33  T.  415;  Whitnker  v. 
Bledsoe.  34  T.  401;  Long  v.  McCauley,  3  a  W.  Rep.  iw»:  Allen  v.  Ko 
505  (14  S.  W.  Rep.  151);  Ivey  v.  Williams.  78  T.  685  (15  S.  W.  Rep.  168)«  Beau- 
mont Pasture  Co.  v.  Cleveland.  'Jt;  s.  \V.  Rep.  93. 

JSoell  v.  Hadden,  85  T.  182  (19  S.  W.  Rep.  1087):  G.,  C.  &  s.  K.  KV 
lone,  25  S.  W.  Rep.  1077.     A  charge  submitting  the  construction  of  a  writ 
the  jury,  if  not  pri'judical  to  appellant,  is  not  ground  for  reversal.     Hlu 
Banana  Co.  v.  Wollfe.  •»•>  S.  W.  Rep. 

»Linch  v.  Paris  L.  &  G.  Co.,  1  4  S.  \V.  Rep.  701. 

<  Stanley  v.  Samples.  "2  \\  C.  I,1*;.     Wli.-r.-  tin-  power  is  given  in  a  deed  ,,f  trust 
to  appoint  a  substitute  trustee,  and  mob  appointment  il  t<>  b.-  made  b\  a  \\ritt.-n 
instrument,  the  construction  of  a  written  instrument  r.-lied  on  as  b. 
the  document  contemplated  and  provided  for  in  the  deed  of  trn- 
the  court,  and  it  is  not  comp.-t.-nt  for  tli.-  jury  to  pa-^  upon  that  .|U--t  ,..n.      M. 
Cormick  v.  Cheveral,  2  U.  C.  146.     A  char-.-  that  if  the  jury  find  th.-  i 
upon  as  title  by  a  party  i.-miiii'-ratiii;:  t!:i-  iiisrru:u»-ntsi  th.-y  should  find  for  the 
party  is  proj»er.  although  not  distinctly  informing  tin-  jury  of  tic-  l«-«al  «-ll 
the  several  instruments   in   t-vid.-nci-.     Ruby  v.  V.m  Valk.-nU'r. 
S.  W.  R,.p.  -.IK 

»Hil»ernia   Ins.  Co.  v.  Starr.  i:t  S.  \V.  K  -p.  1"U7.     It  U-iug  th,-  | 
court  to  con-tru--  written   in>t  rum.-nt>.  a  i-iiatv1   '''  "   '•<•   I"!"'1 
regular  on  its  face,  and  with  proof  of  h.  ir-lup  i-  sutli.-ient  t.»  vest  till- 
Howell  v.  Haiirirk.  2J  S.  \V.  i;  -p. 

In  trespass  to  try  title,  whep-  all  of  plaintiff's  evid.-nce  of  titL 
the  court  shonM  c,,n-tru     tin-  .-vid.-iic,-  and  instruct  the  jury  as  t 
Should  not  leave  th.-  matt-r  to  the  jury.     H..aumont  I'asttm-  < 
268.  W.  K.  p.  M     \VI.  .•.-.-  a  OOBtOMl  between  parties  cl.-arly  pr- 
iuti.-s  on  a  certain  i»>int.  it  is  error  for  the  court  to  allou 
termine  tl  ••  -.f  sU,-h  duties  a«  a  matter  of  fact     Lm 


,       .          . 

A  charge  which  directed  the  jury  t..  n  a  1  th.   wiitt.-n  .-out' 
terms  to  arrive  at  the  int.-ntion  of  the  paiti.-s.  wh-n  takm   in  • 
Other  portions  of  the.-har^.-.  was  h.-ld  not  to  submit  th'  '  ion  of  th- 

-  to  the  jury.       The  charge  ch-arly  .letin-d  all  the  issu- 
fully  the  rules  by  which  the  jury  were  to  be  governed  in  th. 


538  CHARGING   THE   JL'KY.  [§  567. 

?•  567.  On  the  preponderance  of  evidence. 

In  civil  cases  juries  should  ordinarily  find  in  accordance  with  the 
preponderance  of  the  evidence,  and  a  charge  requiring  a  plaintiff 
to  produce  "  satisfactory  evidence,"  or  "  clear  and  satisfactory  evi- 
dence," might  be  understood  to  mean  a  higher  degree  of  proof  than 
is  furnished  by  a  preponderance  of  the  evidence.  This  is  especially 
true  when  the  language  is  often  repeated.1  It  is  held,  therefore, 
that  it  is  error  to  charge  that  facts  must  be  proved  to  the  satisfac- 
tion of  the  jury,  or  that  the  jury  must  be  satisfied ; 2  or  that  the  facts 
must  be  conclusively  proved.3 

AVhere  a  charge  indicates  the  necessity  of  "  full  proof,"  and  it 
appears  that  by  that  term  was  meant  that  the  jury  must  be  satis- 
fied in  their  minds  of  the  existence  of  the  fact,  such  charge  is 
erroneous  in  requiring  more  than  a  preponderance  in  the  testimony 
as  the  grounds  of  the  verdict.4  "When  both  parties  introduce  evi- 
dence sufficient,  if  true,  to  discharge  any  burden  of  proof  cast  on 
them  by  law,  it  is  improper  to  give  any  charge  on  that  subject. 
The  issue  is  then  wholly  as  to  the  weight  of  evidence  and  the  cred- 
ibility of  the  witnesses.5 

in  favor  of  the  plaintiff  or  defendants.)    Bender  v.  Peyton,  4  Civ.  App.  57  (23 
S.  W.  Rep.  222). 

Where  the  sole  question  to  be  submitted  to  a  jury  is  one  of  fraud  in  making 
a  conveyance,  the  instrument  by  which  the  conveyance  was  made  being  in  legal 
form,  its  effect  in  law  should  be  declared  to  the  jury.  H.  &  T.  C.  Ry.  Co.  v.  Shir- 
ley, 31  S.  W.  Rep.  291. 

1  McBride  v.  Banguss.  65  T.  174.    A  charge  which  specifically  enumerates  the 
facts  alleged  in  plaintiff's  petition,  basing  plaintiff's  right  to  recover  on  satis- 
factory proof  thereof,  is  not  objectionable  as  presenting  plaintiff's  cause  of  ac- 
tion with  undue  emphasis.    Gulf,  C.  &  S.  F.  R.  Co.  v.  Dunlap,  26  S.  W.  Rep.  655. 

2  Feist  v.  Boothe,  27  S.  W.  Rep.  33;  Fordyce  v.  Chancey,  2  Civ.  App.  24  (21  S. 
W.  Rep.  181):  Oury  v.  Saunders,  5  Civ.  App.  310  (24  S.  W.  Rep.  310);  McGill  v. 
Hall,  26  S.  W.  Rep.  132. 

3  Greathouse  v.  Moore,  23  S.  W.  Rop.  226.    Where  a  charge  to  the  effect  that, 
before  plaintiffs  could  recover,  the  jury  must  be  satisfied  from  the  evidence  that 
defendant's  negligence  caused  the  fire,  and  that  plaintiffs  were  not  guilty  of 
contributory  negligence,  was  qualified  as  follows:  "And  the  destruction  of  the 
cotton  by  fire  under  this  clause  may  be  shown  by  circumstantial  evidence  suffi- 
cient in  your  opinion  to  justify  the  belief  that  the  fire  was  caused  by  a  spark  or 
cinders  coming  from  defendant's  engine,"  this  latter  clause  sufficiently  indi- 
cated to  the  mind  of  the  jury  that  by  the  word  "satisfied"  nothing  more  was 

icaiit  than  opinion  or  belief;  and  the  charge  as  an  entirety  did  not  present 

i  sible  error.  Martin  v.  Railway  Co.,  3  Civ.  App.  133  (22  S.  W.  Rep.  195). 
In  a  mechanic's  lien  suit  the  court  charged  for  the  plaintiff  if  "  substantial 
compliance"  with  his  contract  should  be  proved,  but  without  defining  the 
terra.  This  was  not  reversible  error.  Johnson  v.  White,  27  S.  W.  Rep.  174.  An 
Instruction  which  places  on  the  party  the  burden  of  showing  facts  by  a  pre- 
ponderance of  "proof"  instead  of  •' evidence,"  while  containing  an  inaccuracy, 
is  not  ground  for  reversal.  Flores  v.  Maverick.  26  S.  W.  Rep.  316. 

4  Baines  v.  Ullman,  71  T.  529  (9  S.  W.  Rep.  543). 

»W.  U.  Tel.  Co.  v.  Bennett,  1  Civ.  App.  558  (21  S.  W.  Rep.  699). 


(   MAUi.l.Ni.      I  | 

In  detorminini:  whether  ;i  deed  was  intended  by  tin-  parties  to  it 
as  a  mortgage,  it  was  error  to  instruct  tin-  jury,  in  nl,-,-t.  that  the 
instrument  must  !>«•  regarded  as  a  derd  unless  the  preponderance  of 
evidence  .-Li,-! 'i  shows  that  tin-  same  was  intended  l»v  the  parties 
at  the  time  of  the  execution  to  operate  as  a  mortgage.  A  prepon- 
derance of  evidence  is  sufficient,  and  the  use  of  the  word  .•.'..»/•/»/  in 
the  charge  was  misleading.1  Ueijuiring  a  full  prepoiiderai 

«•!•!•• 

;;  568.  Must  apply  to  facts  in  evidence. 

A- a  o-encral  rule  it  is  error  to  submit  to  tin-  jurv  an  issue  on 
•which  there  is  no  evidence,  although  it  may  be  presented  bv  the 
pleading:  and  in  some  cases  it  is  said,  without  (nullification,  that 
jiving  of  such  a  charge  is  cause  for  reversal,  and  in  others,  that 
it  is  Around  for  reversal  if  the  jury  were  probably  misled.3  It  is  of 
no  importance  that  the  charge  may  l>e  correct  as  an  abstract  prop- 
osition.4 The  charge  should  always  have  an  application  to  fa« 
evidence  bearing  on  issues  raised  by  the  plead  in  ITS,  and  should  not 
jjive  the  law  on  a  hypothetical  case  not  made  by  the  evidence :%  it 
should  not  consist  merely  of  abstract  propositions  of  law  and 
utory  enactments,  but  should  be  made  to  apply  to  the  evidence  in 

» Prather  v.  Wilkins,  68  T.  187  (4  S.  W.  Rep.  252). 
2  Ridgell  v.  Reeves,  2  App.  C.  C..  g  438. 

J  Altgelt  v.  Brister.  57  T.  432;  Blanton  v.  Mayes,  58  T.  422:  Cook  v.  Dennis.  81 
:  Box  v.  Ward,  65  T.  159;  G.,  C.  &  &  F.  Ry.  (  ,,    r.  Greenlee,  70  T.  558 
<8  S.  W.  IJ.-p.  129):  G.,  C.  &  S.  F.  Ry.  Co.  v.  Silliphant.  TO  T.  623  (8  &  W.  Rep.  673); 
Burns  v.  True.  ~>  <  'i\.  App.  74  (24  S.  W.  Rep.  338),  and  many  other  cases. 

r.ltran  v.  Kllis.  r,s  T.  ^4.-,;  Mi-l.ain  v.  Mi-l)..w,-ll.  •',«•  T.'lOO  (7  &  W.  Rep.  815h 

\V.  I  f.  Tel.  Ca  v.  Kendzora,  77  T.  -J.'i7  (U  S.  W.  Rep.  986).    A  ju.lKiii.Mit  will  not  be 

reversed  on  account  of  a  charge  which  is  correct  as  applicable  to  the  fact*  in  evj- 

t hough  as  an  abstract  legal  pro|x»ition  it  might  not  l»e  correct  as  applies- 

hi.-  to  a  different  Mat-  of  facts.     Railway  v.  H.-witt.  »i?  T.  473  (3  a  W.  Rep 

A  (  liiir^.-  ali-trartly  ri^'lit  ami  ii|X3n  the  general  sul>j«M-t  of  controversy  is  not 

alw.iv-  propi-r  to  U-  given.     The  charge  should  apply  to  the  case  made  in  the 

md  evidence.    Mayor  of  Houston  v.  Railway  Co.,  84  T.  581  (19  &  W. 

A  T.  C.  Ry.  Co.  v.  Rider,  62  T  r,  Barwj,  1  U.  C.  2«8;  Smith  v. 

n.  1  U.  C.  860;  Lee  v.  Yandell.  6U  T.  34  (6  S.  W.  Rep.  665).    When  a  charge 

!-y  the  court  presents  n  hy|Nitln-sis  not  authorized  l>\ 

the  recor.l,  aii-l  which  from  its  nature  as  present nl  may  \\:\\>-  intluenced  the 
venlict.  anil  the  error  is  pointed  out  aid  «-M ••  -pt.-.l  to  .it  th.  • 
for  which  the  judgment  may  be  re\.Tscd.  Tli.-  fact  tli.it  tin-  trial  ju.k-'.  in  rv 
aii  instruction  a-ki-d  to  con.  ,  t  th«-  i-rnn.  -i.it.  ^  In-  opinion  tliat  there 
was  evidrnci-  to  aiithori/f  tin-  diar-.-.  is  immaterial  wln-n  tin-  record  does  not 
show  sudi  «-\  idt-ncf.  Tin-  •  rror  in  this  case  c«>i  jury 

tliat  it  i-  in-ulitf.-nri-  in  a  railroad  company  to  jM-rmit  liru-l»  or  lull  weeds  to 
grow  upon  it-  ri-lit  of  way  so  as  to  ol.-truct  tl  '  mins. 

»-tc..   there   IM-IIIK   ii"  on   th.     -ulij. 

70  T.  -.-.'  -  s.  v,  th«-  dut>  iiijr  in 

employing  and   retainim:  .•mpli.y.-.-s  i-  .  iron i-  \\l\.-t\  tl:  'iceor 

\\.\   \  .  \.  «Jilm.ire.  »;.'T.  :»1. 


CHARGING   THE   JURY.  [_ 

the  case,  and  should  explain  the  law  as  applicable  to  such  evidence.1 
It  is  error  to  charge  as  to  items  of  damage,  such  as  the  recovery  of 
rent,  loss  of  time,  medical  expenses,  etc.,  when  there  is  no  evidence 
on  the  subject.2  If  there  is  no  evidence  of  facts .  pleaded  on  which 
a  claim  for  damages  is  based,  the  court  should  in  terms  instruct  the 
jury  not  to  allow  such  damages.3 

When  from  the  record  it  appears  that  a  charge  is  irrelevant  and 
calculated  to  lead  the  minds  of  the  jury  away  from  instead  of 
t<>\vard  the  true  issue  involved,  it  will  constitute  cause  for  reversal 
unless  it  appears  that  the  verdict  was  not  influenced  thereby.4  The 
purpose  of  the  charge  of  the  court  is  to  afford  the  jury  the  means 
of  applying  the  law  pertinent  to  the  facts  about  which  they  are  to 
deliberate,  and  which  it  is  their  exclusive  province  to  weigh.  A 
charge  which  is  confusing  and  leaves  the  jury  without  guidance  in 
their  deliberations  with  reference  to  a  material  and  disputed  issue 
in  the  case  constitutes  reversible  error.5 

£  569.  Must  be  confined  to  the  issues. 

It  is  improper  to  charge  the  jury  as  to  the  law  applicable  to  an 
issue  not  before  the  court ; 6  the  charge  must  be  based  on  the  plead- 
ings and  the  evidence.7  When  a  charge  presents  a  question  out- 
side of  the  case  as  made  by  the  pleadings,  and  upon  which  the  ver- 
dict might  have  been  found,  a  judgment  based  on  such  verdict  will 
be  reversed;8  also  where  there  is  testimony  showing  that  the  jury 
were  misled;9  or  where  it  is  not  clear  that  the  jury  were  not 
misled.10 

1  Mitchusson  v.  Wadsworth,  1  App.  C.  C.,  §  981. 

-Mo.  Pac.  Ry.  Co.  v.  Lyde,  57  T.  505;  Ft  W.  &  D.  C.  Ry.  Co.  v.  Greathouse,  82 
T.  104  (17  S.  W.  Rep.  834):  Fordyce  v.  Chancey,  2  Civ.  App.  24  (21  S.  W.  Rep.  181): 
I.  &  G.  N.  Ry.  Co.  v.  Lock,  20  S.  W.  Rep.  855;  A.,  T.  &  S.  F.  Ry.  Co.  v.  Click,- 
5  Civ.  App.  224  (23  S.  W.  Rep.  833);  G.,  C.  &  S.  F.  Ry.  Co.  v.  Barton,  23  S.  W. 
Rep.  89. 

3  W.  U.  Tel.  Co.  v.  Kendzora,  77  T.  257  (13  S.  W.  Rep.  986). 

4  Wegner  v.  Biering,  73  T.  89  (11  S.  W.  Rep.  155). 

8  Henry  v.  Sansora,  2  Civ.  App.  150  (21  S.  W.  Rep.  (59).     It  is  not  good  practice 
to  give  in  charge  general  principles  of  law  unless  called  for  by  the  facts  of  the 
case.    Nettles  v.  Somervell,  6  Civ.  App.  627  (25  S.  W.  Rep.  658).     See  Hargis  v. 
Railway  Co.,  75  T.  19  (12  S.  W.  Rep.  953),  for  a  charge,  set  out  in  full,  and  com- 
mended for  the  absence  of  abstract  propositions.    The  action  was  for  damages 
for  personal  injuries  received  at  a  railway  crossing. 

6  Cannon  v.  Cannon,  66  T.  682  (3  S.  W.  Rep.  36):  M.,  K  &  T.  Ry.  Co.  v.  Wick- 
liam.  ','3  S.  W.  Rep.  917;  G.,  C.  &  S.  F.  Ry.  Co.  v.  Cash,  8  Civ.  App.  569  (28  S.  W. 
Rep.  387);  G.,  C.  &  S.  F.  Ry.  Co.  v.  Younger,  29  S..  W.  Rep.  948. 

•G..  II.  &  S.  A.  Ry.  Co.  v.  Silegman,  23  S.  W.  Rep.  298;  Dufford  v.  Herbert,  2 
App.  C.  C.,  S  613:  Ross  v.  Hawley,  3  App.  C.  C.,  g  108;  Patton  v.  Gregory,  21  T. 
513;  Denham  v.  Trinity  County  Lumber  Co..  73  T.  78  (11  S.  W.  Rep.  151);  Tex.  & 
Pac.  Ry.  Co.  v.  French.  86  T.  96  (23  S.  W.  Rep.  642):  G.,  C.  &  S.  F.  Ry.  Co.  v.  Kiz- 
ziah,  4  Civ.  App.  356  (22  S.  W.  Rep.  110;  26  S.  W.  k „•;->.  242). 

9  Loving  v.  Dixon,  56  T.  75;  H.  &  T.  C.  Ry.  Co.  v.  Terry,  42  T.  451. 
3  Flint  v.  Van  Hall,  4  Civ.  App.  401  (23  S.  W.  Rep.  573). 

i°Love  v.  Wyatt,  19  T.  312. 


•71.]  CHAINING    THE    Jl  UY.  .',  U 

70.  Must  cover  all  the  issues. 

The  charge  should  always  be  so  framed  as  t<>  pr.  the  jurv 

all   the    issues   made   by  the  pleadings,  if  there   be   evidence   under 
them,   unless  an    issue    In-  abandoned,  coneerninir  which   abandon- 
inent  the  jury  should  lie  instructed.1     It  is  not  neeessarv  to  ci 
that  an  issue  not  before  the  jury  should  not  be  considered. -     1 
material  issue  must  not  be  withdrawn  from  the  jury  if  there  is  anv 
evidence  tending  to  support  it;-1  and  a  requested  charge  ignoring  a 
material  i>sue  made  by  the  testimony  is  properly  refuse*!.* 

The  failure  to  submit  an  issue  made  by  the  pleadings  and 
dence  will  not  be  ground  for  reversal  where  no  request  was  made 
that  such  issue  be  submitted.'1     This   is  m  accordance  with  a  well 
•  lished  rule  to  the  effect  that  where  the  general  charge   is  de- 
fective simply  by  reason  of  an  omission,  a  party  will  not  be  heard 
to  complain  unless  he  has  asked  a    special   instruction."     When  the 
entire  charge  of  a  court  is  not  incorporated  in  the  record,  the  pre- 
sumption wiH  be  indulged  that  a  proper  charge  was  given  in  n 
to  an  issue  about  which  the  record  contains  no  char:: 

.-'  571.  Defining  the  issues. 

It  is  the  duty  of  the  court  to  evolve  from  the  pleading  the  true 
issues  arising  thereon,  and  to  submit  the  same  to  the  jury,  in- 
of  leaving  them  to  decide  for  themselves,  from  the  legal  ell. 
the  pleadings,  what  those  issues  are.8     When  the  issues  involved  in 

!I.  &  G.  N.  Ry.  Co.  v.  Underwood,  64  T.  463:  Smithwick  v.  Andrews, 
488.    When  a  petition  claims  exemplary  damages  for  an  alleged  wrong,  and  a 
,|U"stion  e\i>t«.  a>  to  whether  the  evidence  shows  such  facts  as  will  sustain 
tin-  claim.  ;i  charge  should  be  given  on  that  subject,  unless,  in  eoiise.iu'  i 
an  oral  statement  made  in  court,  tin-  court  by  a  charge  withdraws  the  consid- 
eration of  such  claim   for  exemplary  damages  from  tin-  jury.     L  &  O.  N.  Ky 

I'liderwood,  04  T.  463. 

»G..  II.  ,V  s.  A.  Ky.  Co.  v.  Croskell,  0  Civ.  A  pp.  160  (25  a  W.  Rep.  480). 
town  v.  Railway  Co..  85  T  889  BO  s.  W.  Kep.  80). 

4\ViMiti-rs  v.  Hal.-.  I!)  S.  \V.   I 

"  WilUiiismi  v.  .Jolm-m.  \v.  Rep 

•Tex.  &  Pac.  Ry.  Co.  v.  Gay,  86  T.  571  rjr,  s   \\ .   1;.  p.  599);  Sayles'  Tex 

,v   I1.  l;\.  Ca  v.  Lowry.  til  T.  1  r.i.     \Vhere  there  is  evidence  tending  to 
|.urcliascr  from  a  v.-nilr"   \\itti   notice  of  a  vendor's  lien,  the  issue 

shouM  IM-  sul.i.iiltf.l  to  tin-  jury.     Morton  v.   l'i.  Worth  Kxpn—  ' 

In  tin-  charge  of  tin-  court  one  allrp-il  cau-r  of  action  l>y  tin-  plaintiff  was  in 
ctr.-ct  withdrawn   from   tin-  jury:   th.-\   u  •  r.    in-ti  uctr.l  to  lin.l  only  upon  an- 
other count.     Siu-h    ,vith.lra\val   eliminate, 1   tin-   count   and  the  defense  - 
a«ain"t  it.  and  complaint    cannot  l.e    ma.le  that  the  ,i 

i  in  tUechai-e.    <;..,    Jb  a  F.  By .  Co.  T.  M.  -T.  «08(1H- 

•HI-    -.pei'ial  X''"<llld-.  of     lle-li--  'd     it  itWn 

an  instruction  which  singles  out  one  of  lln-ni.     H.ill.is  \"  <>.('.  E.  R.  Co.  v.  HAT- 

-    \V.  I;    ,,.    : 

«Barkley  v.  Tarrant  Co..  58  T.  ->~>1.     In  Austin    • 
Ca,  1  API'..  ;  is  h*-ld  that  it  is  not  essential  that  the  judgi>  in  charg- 


CHARGING    THE   JURY.  [§  572, 

a  cause  are  such  as  to  require  explanation  to  a  jury,  the  proper 
practice  is  for  the  court  to  do  this  in  a  general  charge,  and  not  sub- 
mit the  case  to  the  jury  entirely  on  charges  asked  by  the  parties- 
and  given.1  The  better  practice  iy  to  make  a  charge  to  the  jury 
complete  in  and  of  itself,  instead  of  instructing  them  to  predicate 
their  verdict  on  facts  pleaded,  in  such  way  as  to  require  the  jury 
to  refer  to  the  pleadings  to  understand  the  instructions.2 

The  court  should  charge  the  jury  in  accordance  with  the  inter- 
pretation of  the  pleadings  acted  upon  by  the  parties.3 

g  572.  Must  not  give  undue  prominence  to  facts  and  issues. 

A  particular  issue  or  fact  should  not  be  given  undue  prominence 
by  repeated  reference  to  it  in  the  charge; 4  or  by  marshaling  in  con- 
secutive form  every  fact  and  circumstance  that  goes  to  sustain  one 
party's  case,  thus  presenting  the  facts  in  such  a  way  as  to  give  them 
a  prominence  to  which  they  are  not  entitled.5 

It  is  improper  to  emphasize  any  particular  portion  of  the  evi- 
dence, unless  it  certainly  establishes,  as  matter  of  law,  some  issue 
involved  in  the  proceeding;  but  a  disregard  of  this  rule  will  only 
afford  ground  for  reversal  when  it  is  calculated  to  mislead  the  jury.6 
It  is  not  proper  to  group  together  parts  of  the  testimony  upon  an 
issue  in  the  case.  Such  practice  is  calculated  to  give  undue  empha- 
sis to  such  parts  of  the  testimony.7 

A  charge  which  gives  undue  prominence  to  isolated  facts  should 
be  refused.  The  charge  must  not  lead  the  jury  to  infer  what  the 
opinion  of  the  judge  is  upon  facts  before  them.8 

The  propriety  of  calling  the  attention  of  a  jury  to  isolated  facts> 
with  the  statement  that  they  are  to  be  considered  as  evidence  of 
fraud,  or  that  they  are  to  be  considered  as  circumstances  tending 
to  show  fraud,  is  doubtful  in  any  case,  unless  the  matter  to  which 
attention  is  called  under  the  settled  rules  of  law  is  prima  facie  evi- 
dence of  fraud.  Where  the  general  charge  fully  informed  the  jury 
that  they  might  look  to  all  the  circumstances  in  evidence  to  ascer- 
tain the  real  transaction  between  the  parties,  the  validity  of  which 
was  in  issue,  it  was  not  error  to  refuse  a  charge  calling  attention  to 

ing  the  jury  should  state  to  them  what  are  the  issues  made  by  the  pleadings; 
that  they  are  informed  of  the  issues  by  having  the  pleadings  read  to  them. 

1  Red  us  v.  Burnett,  59  T.  576. 

2  Tex.  &  Pac.  Ry.  Co.  v.  Tankersley,  63  T.  57. 

3  Blum  v.  Whit  worth,  66  T.  350  (1  S.  W.  Rep.  108). 

<G.,  C.  &  S.  F.  Ry.  Co.  v.  Harriett,  80  T.  73  (15  S.  W.  Rep.  556). 

5  New  York  &  T.  Land  Co.  v.  Gardner,  25  S.  W.  Rep.  737. 

«Medlin  v.  Wilkins,  60  T.  409. 

?G.,  H.  &  S.  A.  Ry.  Co.  v.  Kutac,  76  T.  473  (13  S.  W.  Rep.  327);  Hurlbut  v.  Boaz, 
4  Civ.  App.  371  (23  S.  W.  Rep.  446). 

8Dawson  v.  Sparks,  1  U.  C.  735;  Panhandle  Nat.  Bank  v.  Emery,  78  T.  498  (15 
8.  W.  Rep.  23);  Mitchell  v.  Mitchell,  80  T.  101  (15  S.  W.  Rep.  705). 


§  572.]  ::..i.\i.    mi.   J  543 

isolated  facts  in  evidence  us  tending  to  prove  or  disprove  the 
in  issue.1 

While  the  giving  of  undue  prominence  in  a  charge  to  some  spe- 
cial feature  in  the  case  may  sometimes  be  so  calculated  to  influ- 
ence a  verdict  us  to  atford  cause  fiti-  reversal,  the  mere  repetition 
in  a  charge,  in  a  suit  for  damages  for  personal  injuries,  of  tin- 
abstract  principle  that  the  jury  mi^ht  consider  the  physical  and 
mental  sutferino;  the  plaintiff  had  endured,  in  estimating  damages, 
cannot  he  regarded  as  calculated  to  affect  a  jury  of  ordinary  intelli- 
gence and  will  afford  no  ground  for  reversal.-'  <  >rdinarily  the  repe- 
tition in  a  charge  of  the  elements  of  damage  which  the  jurv  mav 
consider  will  not  require  a  reversal  of  a  judgment  rendered  against 
the  defendant;  hut  when  the  verdict  seem-  e\c.->-.jve,  a  reasonable 
presumption  arises  that  the  jury  may  have  I.eeii  influenced  thereby.3 

The  practice  of  trial  judges,  sometimes  indulged  in,  of  ch 
ing  in  suits  for  damages  that  the  jury  might  find,  if  at  ai:. 
plaintiff  an  amount  not  t'  ;  the  sum  claimed,  has  been  .1 

proved  by  the  supreme  court:   but  it  veins  that  this  alone  would 
constitute  no  ca'use  for  reversing  a  judgment  :  lly  when  the 

result  was  a  verdict  greatly  less  than  the  amount  claimed,  ami  not 
more  than  the  evidence  seemed  to  authori/e.4     The  jury  are  liable 
to  be  misled  by  such  a  charge  into  the  belief  that  it  is  an  intima- 
tion on  the  part  of  the  judge  that  the  evidence  authori/es  a   r- 
ery  of  the  full  amount  claimed,  when  in  fact  the  amount  is  pi 
by  the  pleader  beyond  any  reasonable  calculation.* 

iGoodbar  v.  National  Bank,  78  T.  461  (14  &  W.  Rep.  851).     Action  against  a 
railway  company  for  can-in;,'  tin-  death  of  one  who  was  walking  u|«m  the 
The  court  charged  that  tin-  defendant   might  \te  negligent  from  tin-  main 
handling  or  propelling  a  car  or  detaching  it  from  the  engine.  <T  failure  t"  di» 
cover  the  danger  of  deceased  from  want  of  pro|*T  can-,  or  <>thrr  matter.     Tin- 
charge  was  erroneous,  as  it  lai-1  to<>  much  -tress  ujxin  the  |iarticular  acts  <  •: 
ligence  claimed.     St.  1...  A.  A:  T.  Ry.  Co.  v.  Tavl.ir.  -'I  s.  \\ 

»H.&T.  C.  Hy.  Co.  v.  U-irkin.  »!»  T.  HI. 

»G.,  C.  &  S.  V.  li\.  »',,  x.  ij,,r,|,,n.  7'i  T.  HI  (7  S.W.  Rep.  685). 

wman  v.  DodtOO.41  T. '.»!:  Tex.  Cent.  I  .rn.'tt.  -<t  T.  536  (!«  - 

Rep.  820);  Eddy  v.  Still.  :5  Civ.  A|.| 

v.  Killebreu.  j  ix    \v.  |;.  ,,.<-:.  T.  \   ,\   I1.,.     1:.    •  Bttfl         .  88  T.  88« 

\v.  i:. -,..  ;i:  :  Beckwith  T.  Hoar,  tl  a  W.  Bep.  74;  l...  U&  R  K.  Ky.  Ca  v.  Lee. 
71  T.  588  (9  aW.  Rep.  r*> 

•Willis  v.  M.  N.  ill  In  its  ch.ir.-e  t«>  the  jury  the  roi, 

ruent  of  the  natur-'  of  tin-    -uit.    use.l    thi-    lan«ru.i.  :-*»uit 

by  her  next  frien-1  again-t  'let.-n.lant  in  the   -inn   of  SIIOMMI.  f,,r   .     rt. tin  alleged 
personal  injuries."    Tlie  eighth  paragraph  u-«-.l  the  following  language:  "1 
find  for  the   plaintitr.   the  form   <.f   your  verdict  will  )«  :    \\  ..  the  jm 
the  plaintiff  and  assess  her  damages,  first,  for  the  inji, 

sequent  suffering  therefrom,  in  the  -urn  of dollar-.' tilling  upthi-  l.lnnk 

the  amount  assessed,  whicirmu«t  in  no  <>ed  $3,000):  -  cond.  for  t 

juries  to  plaintiffs  back  and  con-  .jiu  nt  -ui!  >0'es  in  the 


•  >1  [  CHARGING   THE   JUEY.  [§  573. 

£  573.  When  pleadings  contain  several  combinations  of  facts. 

When  the  pleading  of  either  or  both  parties  contains  several 
•combinations  of  facts,  either  together  or  in  several  counts  or  pleas, 
each  of  which  constitutes  a  cause  of  action  or  ground  of  defense, 
.and  is  sufficiently  supported  by  the  evidence  to  require  a  charge, 
:tnd  upon  which  an  issue  has  been  formed,  the  charge  should  be  so 
framed  as  to  present  to  the  jury,  and  require  a  finding  by  them. 
upon  the  issue  made,  upon  each  of  said  combinations  of  facts,  so 
contained  in  the  pleadings,  which  may  be  necessary  to  a  decision  of 
the  case.1 

The  courts  have  repeatedly  deprecated  the  practice  that  prevails 
in  some  of  the  trial  courts,  in  their  charges  to  the  jury,  in  carving 
out  of  the  mass  of  evidence  in  the  case  certain  facts,  and  instruct- 
ing the  jury  that  they  may  consider  such  facts  for  certain  purposes, 
or  as  tending  to  establish  certain  issues.  The  charge  should  submit 
the  case  upon  all  the  facts  and  circumstances  in  evidence,  leaving 
to  the  jury,  in  the  exercise  of  their  discretion,  a  determination  of  the 
facts  and  the  weight  to  be  given  them.2 

It  is  error  to  so  instruct  a  jury  as  to  preclude  them  from  consider- 
in.ii1  a  theory  arising  upon  the  evidence  which  is  rational,  consistent 
with  other  facts,  and  which,  if  believed,  might  have  resulted  in  a 
Different  verdict.3  When  the  evidence  is  such  that  several  deduc- 
ions  might  be  drawn  by  the  jury,  it  is  the  duty  of  the  court  to  so 
:  i  truct  the  jury  as  to  submit  to  them  the  several  phases  of  the  case 
made  by  the  evidence  under  the  pleadings,  and  to  apply  the  law  to 
the  several  deductions  that  might  be  drawn  therefrom.4  A-  charge 
to  the  jury  which  confines  them  to  consideration  of  one  kind  of 
•evidence  is  erroneous,  if  evidence  of  a  different  kind,  but  relative  to 
the  same  point,  is  adduced.5 

It  is  not  necessary,  nor  is  it  practicable  in  every  case,  to  present 
«very  phase  of  the  case  in  one  paragraph,  nor  does  it  conduce  to 
clearness  to  attempt  to  do  so.  It  is  no  objection  to  a  charge  that 
limitations,  and  distinctions  are  in  separate  paragraphs.6 

sum  of dollars  (filling  up  the  blank  with  the  amount  found,  which  must  in 

no  event  exceed  §7,000).  If  you  find  for  defendant,  you  will  simply  so  say."  The 
amount  claimed  in  the  petition  was  not  given  sufficient  prominence  in  the 
ch.-irge  to  operate  to  the  prejudice  of  the  plaintiff  in  error.  Texas  Cent.  Ey.  Co. 
\.  St  uart.  1  Civ.  App.  642  (20  S.  W.  Rep.  962). 

» Rule  61. 

- 1  lurlbut  v.  Boaz,  4  Civ.  App.  371  (23  S.  W.  Rep.  446);  citing  Gray  v.  Burk,  19 
T.  228;  Jacobs  v.  Crum,  62  T.  401;  Hanna  v.  Hanna,  3  Civ.  App.  51  (21  S.  W.  Rep. 
720). 

8  Leach  v.  Wilson  County.  68  T.  353  (4  S.  W.  Rep.  613). 

«  Brackett  v.  Hinsdale,  2  U.  C.  468. 

5  Machon  v.  Randle,  66  T.  282  (17  S.  W.  Rep.  477). 

*L  &  G.  N.  Ry.  Co.  v.  Brazzil,  78  T.  314  (14  S.  W.  Rep.  609). 


.4.J  (  HAI:.,I.V,    iiu.  . 


">74.  On  negligence. 

When  th»-  issue  is  one  of  negligence  or  not,  the  court  may  define 
neo;liovn<  •«•:  th:it  is,  it  may  inform  the  jury  as  to  the  degree  of  care 
or  diligen.'.-  ..!•  skill  which  the  law  demands  of  a  person,  and  what 
duty  it  devolves  upon  him,  and  the  jury  are  to  find  whether  that 
duty  has  lieen  performed.1  A  charge  that  does  not  instruct  the  jury 
as  to  the  K-LTul  effect  of  certain  tacts  in  the  case,  nor  give  them  to 
understand  what  weight  should  be  given  to  certain  testimony,  can- 
not he  considered  as  on  the  weight  of  evidence;  so  a  charge  which 
merely  defines  negligence  in  reference  to  the  case  made  by  the 
pleadings  and  evidence,  without  grouping  or  commenting  on  the 
tacts,  hut  which  leaves  them  to  be  found  by  the  jury,  and  leaves 
the  jury  to  determine  whether  such  facts  constitute  negligence  as 
defined,  is  not  upon  the  weight  of  evidence.  It  is  the  duty  of  the 
court  to  instruct  the  jury  upon  the  law  of  the  case.  If  the  case  is 
<me  of  negligence,  and  the  court  cannot  inform  the  jury  what  neg- 
ligence is,  it  cannot  perform  this  duty.2  It  is  held,  however,  that, 
ordinarily,  negligence  need  not  be  defined  by  the  court.3 

.  Pac.  Ry.  Co.  v.  Lee,  70  T.  496  (7  S.  W.  Rep.  857). 

2  San  A.  &  A.  P.  Ry.  Co.  v.  Vaughn.  4  <  'iv.  App.  195  (23  a  W.  Rep.  745). 

3  G.,  C.  &  S.  F.  Ry.  Co.  v.  France,  2  App.  C.  C.,  §  70&    The  standard  by  which 
to  test  the  question  of  negligence  vel  non  is  the  common  experience  of  man- 
kind, and  implies  generally  the  want  of  that   care  and  diligence  which  ordi- 
narily prudent  men  would  use  to  prevent  injury  under  the  circumstances  of 
tin-  jKirticular  case.    Cotton  Press  Co.  v.  Bradley,  52  T.  587.    The  diligence  NV 

our  should  use  is  in  each  case  proportioned  to  the  duty,  where  no  duty  exists, 
only  a  slight  degree  of  care  is  imposed.    I.  &  O.  N.  Ry.  Co.  v.  Cocke.  64  T.  I'd  ; 
Mex.  Nat  Ry.  Co.  v.  Crurn,  6  Civ.  App.  702  (25  S.  W.  Rep.  1126);  Tex.  Cent 
Co.  v.  Brock,  30  S.  W.  Rep.  274. 

Before  an  act  can  be  deemed  negligent  per  se,  it  must  either  have  been  done 
in  violation  of  a  statutory  duty,  or  must  in  its  nature  be  so  violative  of 
mon  prudence  that  without  doubt  no  prudent  man  would  have  commit! 
31  F.  Ry.  Co.  v.  Gasscamp,  69  T.  545  (7  S.  W.  Rep.  - 

The  degree  of  care  requisite  to  avoid  liability  for  ne^Ii^ence  must  be  pro- 
•  ned  t«>  the  nature  of  the  act  performed,  the  pla  informed,  and 

the  extent  of  the  danger  and  injury  likely  to  result  from  a  failure  to  use  due 
care  and   |>rud.-m  •,•  to  ;ivoid   indicting  injury  on  others.     1  Ry.  Co.  V. 

Booze  i  ')  (8  S.  W.  Rep.  119).    The  degree  of  care  incumbent  on  any  per- 

son or  corporation  must  be  determined  by  the  nature  of  tin-  employment,  the 
agencies  used,  the  place  where  it  is  carried  on,  and  the  dangers  to  others 
to  result  from   its  conduct.      It    is   not    BCTOf  t->   instruct  the  jury  that  it 
duty  of  a  railway  company  to  use  great  care  and  prudence  in  o|«Tutin^  their 
tr.nns  in  stn-.-ts  and  at  public  places.    G.,  IL  &  &  A.Ry.Co.  v.  Matula,  79  T.  577 
(15  S.  \V.  i 

Ordinary  care  is  the  care  that  a  person  of  ordinary  prudence  won; 
un.iei  -the  same  circumstances.    The  char-e  ••  or  1  1  miry  care  is  that  degree  of 
care  a  person  would  use  under  similar  •  in  um.  stance*"  was  erroneous  as  a 
•  1,-tiniti.wu     St.  L,,  A.  \-  T.    I:  FinU-y.  79  T.  85  (15  8.  066); 

nVomu-r  %.  Cook.  -'»>  S.  W.'ltep.  ill:?.     The  u>e  of  the  terms  ordinary  man  and 
ordinary  buxineaa  man  condemned.     H.  &  T.  C,  Ry.  Co.  v.  Smith,  ??  T.  179  (1$ 
S.  \V.  Rep.  972). 
85 


54:6  CHARGING   THE   JURY.  [§  574. 

Where  the  liability  depends  upon  the  existence  and  proof  of  gross 
negligence,  the  charge  should  contain  a  proper  definition  of  gross 
negligence,  otherwise  the  jury  would  be  left  to  pass  upon  impor- 
tant rights  without  proper  legal  guidance.1 

Strictly  speaking,  negligence  is  a  mixed  question  of  law  and  fact. 
The  jury  are  not  at  liberty  to  say  that  an  act  innocent  and  com- 
mendable in  itself  may  constitute  actionable  negligence,  but  upon 
any  given  state  of  facts  it  is  for  the  court  to  say  whether  negligence 
can  be  inferred  legitimately,  and  for  the  jury  to  say  whether  it 
ought  to  be  inferred.2  There  are  cases  in  which,  as  matter  of  law, 
there  being  no  controversy  about  the  facts,  a  court  would  be  au- 
thorized to  instruct  the  jury  that  a  certain  state  of  facts  or  a  cer- 
tain use  of  property  did  not  constitute  negligence,  even  in  cases  in 
which  the  acts  complained  of  are  not  prohibited  or  enjoined  by  law.5 
The  court  may  find  that  there  is  no  evidence  of  negligence,  and  may 
thereupon  refuse  to  submit  the  case  to  the  jury.* 

When  a  case  is  submitted  to  the  jury,  the  court  is  not  permitted 
to  charge  whether  the  facts  do  or  do  not  constitute  negligence,  in 
the  absence  of  a  statute  or  positive  rule  of  law  declaring  the  act  or 
omission  unlawful.8  Where  an  act  is  an  infraction  of  a  positive 

» Southern  Cotton  Press  Co.  v.  Bradley,  52  T.  587;  Hyatt  v.  Adams,  16  Mich. 
199;  Tex.  &  Pac.  Ry.  Co.  v.  Hill,  71  T.  451  (9  S.  W.  Rep.  351);  Mo.  Pac.  Ry.  Co.  v. 
Brown,  75  T.  267  (12  S.  W.  Rep.  1117).  A  charge  which  first  assumed  a  certain 
state  of  facts  as  constituting  ordinary  negligence,  and  which  then  instructed 
the  jury  that  "  gross  negligence  is  a  greater  or  higher  degree  of  negligence  than 
ordinary  negligence,"  was  held  error,  as  containing  no  definition  of  gross  neg- 
ligence. C.  ross  negligence  is  that  entire  want  of  care  which  would  raise  a  pre- 
sumption of  a  conscious  indifference  to  consequences.  Such  indifference  is 
morally  criminal,  and  if  it  leads  to  actual  injury  may  well  be  regarded  as  crim- 
inal in  law.  Southern  Cotton  Press  Co.  v.  Bradley,  52  T.  587. 

Gross  negligence  is  an  entire  failure  to  exercise  care,  or  the  exercise  of  so 
slight  a  degree  of  care  as  to  justify  the  belief  that  there  was  an  indifference  to 
the  interest  and  welfare  of  others.  L  &  G.  N.  Ry.  Co.  v.  Cocke,  64  T.  151.  The 
most  approved  definition  of  the  term  is  that  given  by  Judge  Story,  in  his  work 
on  Bailments,  section  17,  and  which  is  generally  adopted:  "Gross  negligence  is 
the  want  of  slight  care  and  diligence."  Tex.  &  Pac.  Ry.  Co.  v.  Burnes,  2  U.  C. 
239. 

Gross  negligence,  to  be  the  ground  for  exemplary  damages,  should  be  that  en- 
tire want  of  care  which  would  raise  the  belief  that  the  act  or  omission  com- 
plained of  was  the  result  of  a  conscious  indifference  to  the  rights  or  welfare  of 
the  person  or  persons  to  be  affected  thereby.  It  was  error,  therefore,  for  the 
court  to  define  gross  negligence  as  a  total  want  of  ordinary  care.  Mo.  Pac.  Ry. 
Co.  v.  Shuford,  72  T.  165  (10  S.  W.  Rep.  408);  Same  v.  Mitchell,  72  T.  171  (10  S.  W. 
Rep.  411). 

2  S.  A.  &  A.  P.  Ry.  Co.  v.  Long,  4  Civ.  App.  497  (23  S.  W.  Rep.  499). 

»Tex.  &  Pac.  Ry.  Co.  v.  Levi,  59  T.  674. 

4  Mo.  Pac.  Ry.  Co.  v.  Lee,  70  T.  496  (7  a  W.  Rep.  857).  It  seems,  however,  that 
the  case  must  be  a  very  clear  one  to  justify  the  court  in  withdrawing  it  from 
the  jury.  Tex.  &  Pac.  Ry.  Co.  v.  Murphy,  46  T.  356. 

•  Calhoun  v.  Railway  Co.,  84  T.  226  (19  S.  W.  Rep.  341);  Tex.  &  Pac.  Ry.  Co.  v. 


§  575.]  CHARGING   THE   JCRT. 

statute,  it  constitutes  negligence  of  itself,  and  the  court  should  so 
charge  the  jury.1  It  is  error  to  attempt  to  define  duties,  neglect  of 
which  would  constitute  negligence,  unless  such  duties  are  enjoined 
by  law.  To  say  that  it  is  the  duty  of  a  person,  under  a  given  state 
of  facts,  to  do  certain  things  is  equivalent  to  a  declaration  that  he 
is  guilty  of  negligence  if  he  omits  to  do  them.2 

The  court  cannot  specify  what  acts  would  have  been  prudent  on 
the  part  of  one  about  to  cross  a  railway  track,  or  what  imprudent. 
The  jury  must  be  left  to  consider  the  facts  in  their  own  way,  to  rea- 
son for  themselves,  and  to  form  their  own  conclusions  from  the  evi- 
dence, without  the  aid  of  the  court,  as  to  whether  due  care  appears ! 
or  the  want  of  it,  which  is  negligence.  If  the  law  should  make  cer- 
tain acts  or  omissions  negligence  iptso  fr.cto,  the  court  should  then 
direct  the  jury  that  the  finding  of  such  acts  or  omissions  would  be 
a  finding  of  negligence.  But  the  court  would  transcend  its  author- 
ity if  it  instructed  the  jury  that  the  omission  of  an  act  of  prudence 
would  amount  to  negligence  unless  the  law  declared  it  to  be  so.' 

A  carrier  of  passengers  is  not  an  insurer  of  the  safety  of  his  pas- 
sengers, but  the  law  exacts  a  high  degree  of  care.4 

§  576.  Contributory  negligence. 

The  court  determines  whether  the  testimony  calls  for  a  charge 
upon  the  subject  of  contributory  negligence,  and,  on  defining  the 
meaning  of  the  term,  leaves  it  to  the  jury  to  say,  from  all  the  facts 
in  evidence,  whether  plaintiff  was  guilty  of  contributory  negligence. 
It  is  error  to  tell  the  jury  that  the  facts  alleged  or  proved,  or  a 
state  of  facts  set  forth  in  the  charge,  amounts  to  contributory  neg- 
ligence.4 To  constitute  contributory  negligence  there  must  be  the 
want  of  ordinary  care  on  the  part  of  the  plaintiff,  and  it  must  be  a 
proximate  cause  of  the  injury;  that  is,  a  concurring  cause;  or  in 
other  words,  plaintiff  must  be  guilty  of  want  of  ordinary  care,  and 

Murphy,  46  T.  356:  Dillingham  v.  Parker.  80  T.  572  (16  a  W.  Rep.  885);  O.,  C  * 
a  F.  Ry.  Co.  v.  Oreenlee,  TO  T.  553  (8  S.  W.  Rep.  129);  Campbell  v.  TrunM. 

\V.  Rep.  863);  W.  U.  TeL  Co.  v.  Cooke,  22  &  W.  Rep.  1005;  Houston 
City  Ry.  Co.  v.  Farrell,  27  &  W.  Rep.  942. 

» a  A.  &  A.  P.  Ry.  Co.  v.  Long,  4  Civ.  App.  497  (23  S.  W.  Rep.  499);  Garteiser  T. 
Railway  Co..  2  Civ.  App.  280  (21  8.  W.  Rep.  631). 

»Mo.  Pac.  Ry.  Co.  v.  Lee,  70  T.  496  (7  S.  W.  Rep.  857);  G..C.  A  &  F.  Ry.  Co.  T. 
Shieder,  80  S.  W.  Rep.  902;  Tex.  &  Pac,  Ry.  Co.  v.  Wright,  62  T.  515;  O..  H.  &  a 
A.  Ry.  Co.  v.  Forfeit,  72  T.  844  (10  &  W.  Rep.  207);  O.,  C.  A  a  F.  Ry.  Co.  v.  Ander- 
son. 76  T.  244  (13  &  W.  Rep.  196). 

>  ( i.,  H.  A  &  A.  Ry.  Co.  v.  Porf.  rt.  72  T.  844  (10  &  W.  Rep.  907);  G.,  C.  A  &  F. 
Ry.  Co.  v.  Anderson,  76  T.  244  (18  a  W.  Rep.  198). 

« L  &  G.  N.  Ry.  Co.  v.  Halloren,  53  T.  46;  L  &  G.  N.  Ry.  Co.  v.  Underwood,  64 
T.  463;  Galveston  City  R.  Co.  v.  Hewitt,  67  T.  473  (8  a  W.  Rep.  705). 

»Denham  v.  Trinity  County  Lumber  Co.,  78  T.  78  (11  a  W.  Rep.  151);  L  &  G. 
N.  Ry.  Co.  v.  Dyer.  76  T.  156  (18  a  W.  Rep.  877);  Bonner  T.  Glenn.  79  T.  581  (15 
a  W.  Rep.  572);  W.  U.  TeL  Co.  v.  Lydon,  83  T.  864  (18  a  W.  Rep.  701). 


54rS  CHARGING   THE   JUKY.  [§  575. 

this  want  of  ordinary  care  must  proximately  contribute  to  the  in- 
jury.1 By  proximate  cause  is  meant  the  efficient  cause,  without  which 
the  injury  would  not  have  happened.2 

Where  one  is  injured  by  the  negligence  of  another,  the  exercise 
of  ordinary  caution  by  the  injured  party  to  avoid  the  danger  is  all 
that  the  law  requires  in  order  that  he  may  be  protected  against  the 
consequences  of  having  contributory  negligence  imputed  to  him. 
Though  the  negligence  of  one  who  has  been  injured  by  another  may 
have  contributed  to  the  injury,  yet  if  the  person  inflicting  it  dis- 
covers the  peril  of  the  other  in  time,  by  the  reasonable  exercise  of 
the  means  at  hand,  to  prevent  the  injury,  the  failure  to  use  such 
means  must  be  regarded  as  the  proximate  cause  of  the  injury,  for 
which  the  person  inflicting  it  is  liable,  although  the  injured  party 
was  guilty  of  contributory  negligence.3  Although  the  question  of 
contributory  negligence  proper  is  one  of  fact  for  the  jury,  under 
appropriate  instructions,  yet  the  question  of  remoteness  of  damage 
is  one  of  law  to  be  decided  by  the  court.4 

The  defenses  of  "contributory  negligence"  and  of  "assumed 
risk  "  are  separate  and  distinct.  The  doctrines  are  applicable  under 
different  conditions.  In  the  case  of  master  and  servant,  "  contribu- 
tory negligence  "  implies  the  existence  of  negligence  on  the  part  of 

i  G.,  C.  &  S.  F.  Ry.  Co.  v.  Danshank,  6  Civ.  App.  385  (25  S.  W.  Rep.  295);  H.  & 
T.  C.  Ry.  Co.  v.  Smith,  52  T.  178;  L  &  G.  N.  Ry.  Co.  v.  Garcia,  75  T.  583  (13  S.  W. 
Rep.  223);  Martin  v.  Tex.  &  PaaRy.  Co.,  87  T.  117  (26  S.  W.  Rep.  1052). 

2St  L.  &  S.  F.  Ry.  Co.  v.  McClain,  80  T.  85  (15  S.  W.  Rep.  789);  Campbell  v. 
McCoy,  3  Civ.  App.  298  (23  S.  W.  Rep.  34);  Houston  City  St.  Ry.  Co.  v.  Richart, 
29  S.  W.  Rep.  1040. 

3  Hays  v.  Railway  Co.,  70  T.  602  (8  S.  W.  Rep.  491). 

4  Brandon  v.  Manufacturing  Co.,  51  T.  121.    An  act  is  the  proximate  cause  of 
an  injury  when  the  injury  is  the  natural  and  probable  consequences  of  the  neg- 
ligence or  wrongful  act,  and,  in  the  light  of  attending  circumstances,  ought  to 
have  been  foreseen.    Barnes  v.  T.  &  N.  O.  Ry.  Co.,  63  T.  660;  Johnson  v.  Rail- 
way Co.,  2  Civ.  App.  139  (21  S.  W.  Rep.  274).     When  one  has  violated  a  duty  im- 
posed upon  him  by  the  common  law,  he  should  be  held  liable  to  every  person 
injured  thereby  whose  injury  is  the  natural  and  probable  consequence  of  his 
misconduct;  and  this  liability  extends  to  such  injuries  as  might  reasonably 
have  been  anticipated,  under  ordinary  circumstances,  as  the  natural  and  prob- 
able result  of  the  wrongful  act.     (Citing  McDonald  v.  Snelling,  14  Allen,  290; 
Ban-on  v.  Eldredge,  100  Mass.  455;  Kellogg  v.  C.  &  N.  W.  Ry.  Co.,  26  Wis.  223, 
278.)    If,  subsequently  to  the  original  wrongful  or  negligent  act,  a  new  cause 
has  intervened,  of  itself  sufficient  to  stand  as  the  cause  of  the  misfortune,  the 
former  must  be  considered  as  too  remote.    The  original  wrongful  or  negligent 
act  will  not  be  regarded  as  the  proximate  cause,  where  any  new  agency,  not 
within  the  reasonable  contemplation  of  the  original  wrong-doer,  has  intervened 
to  bring  about  the  injury.     (Citing  Insurance  Co.  v.  Tweed,  7  Wall.  52.  and 
Brandon  v.  Manufacturing  Co.,  51  T.  121.)    Where,  however,  the  intervening 
cause  and  its  probable  or  reasonable  consequences  are  such  as  could  reasonably 
have  been  anticipated  by  the  original  wrong-doer,  the  causal  connection  be- 
tween the  original  wrongful  act  and  the  subsequent  injury  is  not  broken,  and 
an  action  may  lie  therefor.    Scale  v.  G.,  C.  &  S.  F.  Ry.  Co.,  65  T.  274. 


§  576.]  CHARGING    THE   JURY. 

an  injured  servant,  co-operating  with  that  of  the  master,  and  thus 
aiding  in  producing  the  injury.  The  doctrine  of  "asMim.-.l  risk" 
obtains  without  necessary  reference  to  the  existence  of  negligence. 
If  the  servant,  with  knowledge  of  a  defect  in  the  master's  premises, 
and  of  the  danger  and  risk  incident  thereto,  continues  in  the  serv- 
ice of  the  master  without  proper  notice  to  tin-  lattrr,  lu»  assumes 
the  risk  incident  to  the  service  and  growing  out  of  th<>  «v\i>t.-nce  of 
the  defect;  and  this  without  regard  to  the  degree  of  care  which 
he  may  exercise  in  the  performance  of  his  labors.  When  the  de- 
fense of  "assumed  risk  "  is  set  up,  a  charge  is  erroneous  which  con- 
founds it  with  the  defense  of  "contributory  negligent* 

£  576.  As  to  damages. 

It  is  the  duty  of  the  court  in  all  cases  involving  a  question  of 
damages  to  give  definite  instructions  as  to  the  correct  measure  of 
damages  applicable  to  the  facts  of  the  case.  This  is  a  matter  of  law. 
and  for  the  court  alone  to  determine;  the  province  of  the  jury  is 
to  estimate  the  amount  of  damage  sustained  in  accordance  with  the 
rules  submitted  to  them  by  the  court.2  It  is  not  sufficient  to  charge 
the  jury  that  they  may  find  such  damages  as  are  the  actual,  natural, 
proximate  result  of  the  acts  complained  of;1  and  in  a  suit  for  dam 
ages  for  personal  injuries,  a  charge  that  if  the  jury  rind  for  plaint- 
iff they  may  award  actual  damages  in  any  amount  they  may  deem 
proper,  leaving  them  at  liberty  to  award  the  full  amount  claimed. 
is  erroneous.4 

Where  the  testimony  warrants  a  charge  upon  both  actual  and 
exemplary  damages,  the  jury  should  be  instructed  to  keep  their 

^  Tex.  &  Pac.  Ry.  Co.  v.  Bryant,  8  Civ.  App.  184. 

»  Texas  Trunk  R  Co.  v.  Elam,  1  App.  C.  C.,  g  446;  O.,  H.  &  S.  A.  Ry.  Co.  v.  Le 
Gierse,  51  T.  189:  H.  &  T.  C.  Ry.  Co.  v.  Nixon,  52  T.  19;  G.,  H.  &  S.  A.  Ry.  Ca  v. 
Scbrader,  1  App.  C.  C.,  g  1148;  Ft.  W.  &  D.  C.  Ry.  Ca  v.  Scott,  2  App.  C,  C.,  §  148; 
O.,  H.  &  S.  A.  Ry.  CV  \pp.  C.  i '..  <  40S.  The  giving  of  two  methyls 

of  estimating  damages  is  immaterial  when- 1  lu- y  produce  the  same  result.    1 
&  R  G.  Ry.  Co.  v.  Andrews,  29  S.  W.  Rep.  920. 

»  Mo.  Pac.  Ry.  Co.  v.  Cox,  2  App.  C.  C.,  Js  288. 

*Q.,  C.  &  S.  F.  Ky  ( !o  v.  H,.a<l.  4  App.  C.  C.,  g  209.  See  Oon  rales  Branch  Ry. 
Co.  v.  Harvey,  25  S.  W.  Rep.  10','Y  It  i-  not  a  char>;f  on  tin-  w.-iglit  of  t- vidence, 
in  a  suit  to  recover  damages  for  personal  injuru-s,  for  tin-  trial  judgi-  t*>  I-MUIU.T 
at.'  tin-  fa<-ts  which  the  jury  mi«ht  consider  in  estimating  damages,  when  the 
charge  does  not  assume  their  existence.  l>ut  instructs  the  jury  tl:at  they  must 
look  to  the  evidence  for  them.  Nor  is  it  error  to  t. -11  th»  jury  that,  if  tin-  in- 
juries complained  of  \\ .  r-  pn-v.-il.  th-  .lama^f  n-sultinu  fr..ia  tlu-m  might  be 
determined  from  the  general  knowledge  and  experience  of  the  jury.  Newman 
v.  Dodson,  61  T.  91. 

Whi-r.-th-i-oiirt  chared  th.-  jury  to  find  damages  within  the  limits  stated, 
but  omitted  to  charge  on  the  m.MMin- an  1  ••l.m.nts  of  damages,  it  \\a»  li.  Id  that 

as  there  was  no  aJlinnativ.-  (  rn.r  in  th«-  <  liar^--.  tl rr.T  \»-n\£  *>aion. 

and  the  appellant  not  having  asked  a  q  '•••  was  no  ground  of 

complaint.     C..  l1.  Jfc  S.  F.  Ry.  Co.  \.  V-  l^p.  934. 


550  CHANGING   THE   JUKY.  [§  577. 

findings  separate,  so  as  to  show  separately  the  amount  of  each  kind 
of  damages  found.1  When  exemplary  damages  are  not  claimed,  it 
is  not  error  for  the  court  to  fail  to  give  a  charge  distinguishing  be- 
tween actual  and  exemplary  damages.2  An  objection  that  the  trial 
court  did  not  direct  the  jury  to  separate  the  actual  from  the  exem- 
plar v  damages,  in  their  verdict,  comes  too  late  when  not  raised 
until  after  appeal.  The  point  should  have  been  made  in  the 
court  below  by  asking  an  instruction  covering  it.3  It  is  error  to 
instruct  the  jury,  in  a  suit  for  damages  against  a  corporation,  in 
which  exemplary  damages  are  claimed,  to  return  a  verdict  for  such 
damages  as  they  believe  from  the  evidence  the  plaintiff  is  entitled 
to,  without  furnishing  them  a  rule  for  their  guidance  in  discrim- 
inating between  actual  and  exemplary  damages.4 

In  an  action  for  exemplary  damages  for  wrongfully  suing  out  a 
writ  of  attachment,  an  omission  to  charge  on  one  of  the  essential 
elements  of  damages  in  such  case  was  held  error.5 

When,  in  an  action  on  account,  the  charge  of  the  court  improp- 
erly limits  the  amount  of  recovery  to  a  spcified  amount,  the  judg- 
ment will  be  reversed,  unless  on  a  consideration  of  the  evidence  it 
should  manifestly  appear  that  a  verdict  of  a  different  amount  than 
that  found  would  have  been  so  clearly  erroneous  that  it  should  have 
been  set  aside.6 

§  577.  Measure  and  elements  of  damages. 

If  injury  necessarily  results  to  the  person,  property  or  reputation 
of  one  person  from  the  acts  of  another,  violative  of  a  right  secured 
by  contract  or  the  general  law  of  the  land,  the  injured  person  is 
entitled  to  damages  to  compensate  him,  whatever  may  be  the  ele- 
ments which  make  up  the  injury  and  form  the  basis  of  damages.7 

i  G.,  H.  &  S.  A.  Ry.  Co.  v.  Le  Gierse,  51  T.  189. 

2L  &  G.  N.  Ry.  Co.  v.  Smith,  02  T.  252. 

JBelo  v.  Wren,  63  T.  686.  The  charge  directed  the  jury  to  separate  their  find- 
ings of  actual  and  exemplary  damages,  "in  order  that  the  amount  of  either  or 
both  may  be  known."  Taken  with  the  remainder  of  the  charge,  the  jury  could 
not  have  understood  that  they  were  expected  to  find  both  actual  and  exemplary 
damages.  San  Antonio  &  A.  P.  Ry.  Co.  v.  Kniffen,  4  Civ.  App.  484  (23  S.  W.  Rep. 
457).  That  the  charge  named  the  limit  of  the  claim  for  exemplary  damages,  and 
did  not  direct  the  jury  to  find  separately  the  actual  and  exemplary  damages, 
there  being  no  request  for  more  definite  instructions,  is  no  ground  for  reversal. 
The  verdict  was  only  for  the  amount  of  actual  damages  claimed.  Heiligmann 
v.  Rose,  81  T.  222  (16  S.  W.  Rep.  931). 

«G.,  H.  &  S.  A.  Ry.  Co.  v.  Dunlavy,  56  T.  256. 

'Elser  v.  Pierce,  2  App.  C.  C.,  §  739.  In  an  action  for  wrongful  death,  an  in- 
struction to  the  jury  to  allow  "such  damages  as  you  may  think  proportioned 
to  the  injury,"  while  too  broad,  is  sufficient  in  the  absence  of  a  request  for  a 
charge  specifying  the  elements  of  damages.  G.,  H.  &  S.  A.  Ry.  Co.  v.  Worthy, 
27  S.  W.  Rep.  426. 

•Burnett  v.  Waddell,  54  T.  273. 

7  Stuart  v.  Telegraph  Co..  66  T.  580  (18  S.  W.  Rep.  351);  Aggs  v.  Shackelfori 
County,  85  T.  145  (19  S.  W.  Rep.  1085). 


73.]  HR   JURY. 

If  a  tort  be  committed  deliberately,  recklessly,  or  by  wilful  negli- 
gence, with  a  present  consciousness  of  invading  another's  right,  or 
of  exposing  him  to  injury,  exemplary  damages  may  l>e  reco\v 
But  exemplary  damages  cannot  be  recovered  without  proof  of  act- 
ual damai:e>,J  and  the  rule  is  that  exemplary  damages  will  not  bo 
awarded  for  the  breach  of  a  contract.3   Courts  generally  are  inclined 
fixed  sum  designated  as  damages  in  a  contract  as  a  pen 
alty.  and  to  hold  that  the  real  damages  are  to  be  inquired 

of  profits  may  lie  allowed  as  damages  for  breach  of  con: 
but  the  profits  must  be  such  as  are  the  direct  and  immediate  fruits 
of  the  contract.* 

AVhere  one's  rights  of  person  or  property  are  violated  he  is  en- 
titled, at  l»>ast,  to  nominal  damages,8  and  whatever  is  reco\ 
lieyond  this  as  actual  damages  must  be  proved;  and  the  measure  of 
actual  damages  is  compensation  for  all  loss  which  is  the  \>*. 

t  of  the  act  complained  of.7    Among  the  elements  of  actual 
damaurs  which  may  be  considered  are  permanent  injury  to  person 
and  property,  diminished  capacity  to  earn  money,  loss  of  sen 
of  a  minor,  loss  of  earnings  of  a  deceased,  loss  of  profits  at 
credit,  loss  of  time  and  increased  expense,  resulting  disease,  mental 
and  physical  suffering,  etc.8 

?  578.  Parties  may  ask  instructions;  if  refused,  no  exceptions  re- 
quired. 

Hither  party  may  present  to  the  judge,  in  writing,  such  inst 
tions  as  he  desires  to  be  given  to  the  jury.     The  judge  may 
such  instructions,  or  a  part  thereof,  or  he  may  refuse  to  give  them, 
e  proper,  and  must  read  to  the  jury  such  of  them  as  he 
may  give.1*     "When  the  instructions  asked,  or  some  of  them,  are  re- 

» Jacobs  v.  Crum,  62  T.  401;  L  &  G.  N.  Ry.  Co.  v.  Garcia,  70  T.  207  (7  S.  \V.  Rep. 

2  Flanagan  v.  Womack,  54  T.  45;  G.,  C.  &  9.  F.  Ry.  Co.  v.  Levy,  59  T.  M8; 
(Jiranl  v.  Moore.  86  T.  675  (26  S.  W.  Rep.  945);  Jones  v.  Matth, -ws.  ::•  T.  1  (18  8. 
W.  Rep.  -S-.M):  Kit/,  v.  City  of  Austin.  1  Civ.  API*.  455  (20  a  \V.  K-p.  lOttX 
»  Peterson  v.  Thomas.  24  S.  \V.  IJ.-p.  H-M:  a  A.  &  A.  P.  Ry.  G 

W.   K,-p.  4.17  >:  H.  &  T.  C.  Ry.  Co.  v.  Shirl.-y.  The 

t.-n.l.-nry  of  the  decisions,  however,  in  those  states  in  which  technical  for' 
union  have  been  abolished,  is  to  allow  exemplary  damages  where  a  bm 
Contract  is  attended  with  circumstances  of  aggravation.    G.,  C,  &  S.  F.  Ry.  Ca 
v.  Levy.  59  T. 

-man.  63  T.  176:  Dietert  v.  Fri-lay.  -'-'  S.  W.  Rep.  291. 

sOVomu-r  v.  Smith.  *4  T.  -.»:w  d'.»aW.  Rep.  168);  Catesv.Spar*  T.6I9 

-   \V.  H,-p.  *.!•;  :  \v.  r.  T.>1.  Co.  v.  Bow, n.  M  T  J7«  (l»  S.  W.  Rep.  554);  Swasey 
\|.p.  C.  C.,  §22*'.  ^Illls  v.  lI.-ri-ul.->  It,. ii  Work-.  j'p.683 

\V.  K-p   1007). 
•Hope  v.  AH.-X 

ulerson,  80-T.  224:  W.  T.  R.  Co.  v.  Shir!-  y.   r.  T    :r.T.   Smith  v. 
Sherwood,  2  T.  460. 
'See  Savior,' Civil  \> 
»R  a  1319.     R  -quested  instructions  must  be  signed  by  counsel     T.  A  P.  Ry. 


552  CHARGING    THE   JURY.  [§  578. 

fused,  the  judge  must  note  distinctly  which  of  them  he  gives,  and 
which  he  refuses,  and  subscribe  his  name  thereto ;  such  instructions 
are  to  be  filed  with  the  clerk,  and  constitute  a  part  of  the  record 
of  the  cause,  subject  to  revision  for  error  without  the  necessity  of 
taking  any  bill  of  exception  thereto.1 

When  a  full  charge  upon  the  issues  has  been  made,  so  far  as  the 
evidence  adduced,  tending  to  establish  them,  may  require,  the  court 
should  not  encourage  the  asking  of  additional  charges  covering  the 
same  ground  substantially,  and  charges  asked  and  not  given  should 
not  be  read  in  the  hearing  of  the  jury,  or  taken  by  the  jury  in  their 
retirement.2 

Co.  v.  Mitchell,  26  S.  W.  Rep.  154;  Redus  v.  Burnett,  59  T.  576;  Houston  v.  Blythe,. 
60  T.  505.  They  need  not  be  signed,  if  signed  by  the  judge  and  marked  "  given." 
G.,  H.  &  S.  A.  Ry.  Co.  v.  Neel,  26  S.  W.  Rep.  788.  The  court  should  give  or  re- 
fuse the  instructions  without  alteration.  Trezevant  v.  Rains,  25  S.  W.  Rep. 
1092;  Cotton  Press  Co.  v.  Bradley,  52  T.  587.  In  other  cases  it  is  said  that  the 
court  may  modify  the  instruction,  but  is  under  no  obligation  to  do  so.  Brown- 
son  v.  Scanlan,  59~  T.  222;  Mo.  Pac.  Ry.  Co.  v.  Cullers.  81  T.  382  (17  S.  W.  Rep.  19); 
McConnell  v.  Bruggerhoff,  1  App.  C.  C.,  §  1006;  G.,  H.  &  S.  A.  Ry.  Co.  v.  Schra- 
der,  1  App.  C.  C.,  §  1148.  Complaint  cannot  be  made  that  -a  charge  asked  was 
given  with  modifications,  unless  it  was  error  to  refuse  the  charge  as  asked,  or 
that  the  party  had  a  right  to  have  the  charge  given  as  requested.  Willis  v. 
Hudson,  72  T.  598  (10  S.  W.  Rep.  713).  Where  a  charge  is  requested  and  the 
court  modifies  it  and  then  gives  the  modified  charge  to  the  jury,  the  action  of 
the  court  should  be  shown;  i.  e.,  the  precise  alteration  or  addition  by  the  court 
should  appear.  Mo.  Pac.  Ry.  Co.  v.  Williams,  75  T.  4  (12  S.  W.  Rep.  835). 

The  rule  is  that  if  part  of  a  requested  charge  is  incorrect,  and  is  so  connected 
with  other  parts  as  not  to  be  easily  separated,  the  whole  may  be  rejected.  Brown- 
son  v.  Scanlan,  59  T.  222;  Rosenthal  v.  Middlebrook,  63  T.  333;  Hamburg  v. 
Wood,  66  T.  168  (18  S.  W.  Rep.  623);  Mo.  Pac.  Ry.  Co.  v.  Cullers,  81  T.  382  (17  S. 
W.  Rep.  19):  McWhorter  v.  Allen,  1  Civ.  App.  649  (20  S.  W.  Rep.  1007);  Yar- 
borough  v.  Weaver,  6  Civ.  App.  215  (25  S.  W.  Rep.  468);  Lanyon  v.  Edwards,  26 
S.  W.  Rep.  524;  I.  &  G.  N.  Ry.  Co.  v.  Neff,  26  S.  W.  Rep.  784.'  If  the  objection- 
able paragraph  can  be  readily  separated  it  is  error  to  refuse  the  whole.  Burn- 
ham  v.  Logan,  30  S.  W.  Rep.  97  (29  S.  W.  Rep.  1067). 

1  R  S.  1320;  Rule  54.    The  indorsement  of  the  words  given  or  refused  shows 
the  disposition  made  of  the  requested  instructions  so  as  to  subject  the  action  of 
the  court  to  revision  on  appeal.    The  indorsements  ought  to  be  signed  by  the 
judge.     Thompson  v.  Chumney,  8  T.  389. 

2  Rule  62.    The  giving  of  special  instructions  on  points  covered  by  the  general 
charge  is  not  to  be  commended,  but,  unless  they  are  erroneous  or  objectionable 
in  form,  they  furnish  no  ground  for  reversal.    McBride  v.  Banguss,  65  T.  174;. 
Tex.  &  Pac.  Ry.  Co.  v.  Medans,  64  T.  92;  N.  Y.  &  Tex.  Steamship  Co.  v.  Island 
City  Boating,  etc.  Ass'n,  2  Civ.  App.  490  (21  S.  W.  Rep.  1007);  Tex.  &  Pac.  Ry.. 
Co.  v.  Raney,  23  S.  W.  Rep.  340;  Maes  v.  Tex.  &  N.  O.  Ry.  Co.,  id.  725.    Where 
portions  of  the  charge  given  were  calculated  to  mislead  the  jury,  although  the 
view  of  the  law  intended  to  be  presented  was  correct  and  would  have  been 
rightly  understood  by  one  of  legal  training,  a  special  charge  clearly  presenting 
the  law.  being  asked,  should  have  been  given.    Willis  v.  McNeill,  57  T.  4Q~>. 
Where  the  testimony  tends  to  show  facts  which  if  found  constitute  a  complete 
defense,  the  defendant  is  entitled  to  have  a  special  charge  upon  such  issue,  and 
a  refusal  to  give  such  charge  is  reversible  error  where  the  general  charge  fails- 


§  579.]  CHARGING   THE   Jl  553 

£  579.  Special  instructions  must  be  requested,  when. 

It  has  been  held  in  a  lon^  line  of  decisions  that  a  charge  correct 
so  far  as  it  applies  to  the  facts,  but  omitting  to  state  the  law  appli- 
cable to  an  issue  raised  by  them,  furnishes  no  ground  for  reversal, 
unless  proper  instructions  relating  to  the  matter  omitted  be  asked 
and  refused.  Whatever  exceptions  there  may  be  to  this  rule,  none 
of  them  embrace  a  case  in  which  the  undisputed  evidence  t 
lishe*  the  facts  to  which  the  omission  relates.1  The  rule  is  that 
where  the  defect  in  the  general  charge  is  simply  one  of  omission,  a 
party  will  not  be  heard  to  complain  unless  he  has  asked  a  special 
instruction.2  Where  a  charge  is  erroneous  or  misleading  it  does 
not  devolve  upon  the  party  injured  to  request  its  correction  in  an- 
other charge.  It  is  only  where  a  charge  is  incomplete,  but  correct 
so  far  as  it  goes,  that  the  defect  must  be  sought  to  be  corrected  l>y 
asking  a  charge  supplying  the  defects.8  An  imperfect  charge,. 

to  present  clearly  the  law  upon  such  issue.    W.  U.  TeL  Ca  v.  Andrews,  78  T.  80S 
.  14  S.  \V.  Rep.  641). 

The  refusal  of  a  requested  instruction  is  not'  reversible  error,  unless  it  be 
shown  that  injury  may  have  resulted.  McConnell  v.  Bruggerhoof.  1  App.  C.  C., 
§1007. 

i  Tex.  &  Pac.  Ry.  Ca  v.  Gay.  86  T.  571  (26  S.  W.  Rep.  599). 

2 Tex.  &  Pac.  Ry.  Co.  v.  Casey.  52  T.  113:  Emlick  v.  Kndick.  61  T.  559;  Van  Al- 
styne  v.  H.  &  T.  C.  Ry.  Co.,  56  T.  374;  San  A.  St  Ry.  Co.  v.  Helm,  64  T.  147;  L  & 
G.  N.  Ry.  Co.  v.  Leak.  64  T.  654;  L.  &  L.  &  G.  Ins.  Co.  v.  Ende.  65  T.  118;  fhulk 
v.  Foster,  2  U.  C.  704;  Smith  v.  Caswell,  67  T.  567  (4  a  W.  Rep.  848):  I'm 
Gunter,  77  T.  490  (14  S.  W.  Rep.  127);  Tex.  &  Pac.  Ry.  Co.  v.  Brown.  78  T.  897  (14 
a  W.  Rep.  1034):  Mayer  v.  Walker,  82  T.  222  (17  a"  W.  Rep.  505);  G.,  C.  A 
Ry.  Co.  v.  Jones,  1  Civ.  App.  372  (21  S.  W.  Rep.  145);  G..  H.  &  a  A.  Ry.  Ca  T. 
Daniels,  1  "Civ.  App.  695  (20  S.  W.  Rep.  955):  I.  &  G.  N.  Ry.  Ca  v.  Smith.  1  S.  \V. 
Rep.  565:  Reed  v.  Hardeman.  5  a  W.  Rep.  505;  Myer  v.  Fruin,  16  a  W.  Rep.  868; 
Banana  Ca  v.  Wollfe,  22  a  W.  Rep.  269;  McLane  v.  Elden,  28  a  W.  K-  i 
Richardson  v.  Jankofsky,  23  a  W.  Rep.  815;  Blum  v.  Jones.  28  a  W.  Rep.  844; 
G.,  H.  &  S.  A.  Ry.  Co.  V.  McMonigal,  25  a  W.  Rep.  341 ;  M ..  K.  &  T.  Ry.  Ca  r. 
Pfluger,  25  a  W.  Rep.  792:  Temploton  v.  Green.  25  a  W.  Rep.  1'  -on  T. 

Whit-.  27  S.  W.  Rep.  174;  Willis  v.  Haas,  27  S.  W.  Rep.  268. 

'Alexander  v.  Robertson.  86  T.  511  (26  a  W.  Rep.  41 1;  M..  K.  &  T.  Ry.  Ca  T. 
Hirschoffer.  24  a  W.  Rep.  577;  I.  &  G.  N.  Ry.  Ca  v.  Welch.  86  T 
Rep.  390).    When  a  charge  of  the  court,  though  correctly  stating  the  law,  may. 
by  reason  of  its  general  terms,  be  defective  as  applicable  t«.  th<»  ca»a  made  I  y 
the  evidence,  it  is  the  right  of  the  party  complaining  to  supply  iU  defect*  by 
asking  further  instructions;  failing  in  this,  he  cannot  c  omplain.    Tex.  &  Patv 
Ry.  Co.  v.  Beard,  68  T.  265  (4  S.  W.  Rep.  483).     If  the  ju.lp-  vn  Ins  ,-ha.rg*  under- 
takes to  state  to  the  jury  the  issues  made  by  the  pleadings,  and  the  charge  M 
given  is  objectionable,  either  from  umitting  ;i  part  of  surh  issues  or  from  stat- 
ing them  incorrectly,  the  proper  remedy  to  apply  i>  t->  rail  • 
court  to  the  error  by  requesting  a  proper  charge  at  the  time.     If  that 
done,  as  a  general  rule  such  omission  will  not  be  regarded  groin  •  mat 

Milmo  v.  Adamv  •;  (15  a  W.  Rep.  690). 

The  better  practice  in  suits  for  damages  for  personal  injuries  is  for  a  party 
who  isdisapp  .mte  1  with   Die  terms  in   which  the  trial  ju  lp>  has  st 
jury  the  rule  to  be  followed  in  estimating  damages,  to  at  once  ask   him  to  give 
to  the  jury,  in  addition,  a  carefully  drawn  instruction  embracing  the  rule  to  b» 


554  CHARGING    THE   JURY.  [§§  580,  581. 

though  properly  refused,  should  be  considered  as  a  request  by  coun- 
sel made  to  the  court  to  charge  the  jury  upon  the  issue  to  which 
such  charge  was  directed.1 

g  580.  Need  not  be  repeated. 

Where  a  full  and  correct  charge  has  been  given,  the  judge  may 
and  should  refuse  to  repeat  it,  or  any  portion  of  it.2  Abstract 
propositions  of  law  asked  by  counsel  to  be  given  as  instructions  to 
the  jury,  though  correct  as  applicable  to  minor  issues,  should  be  re- 
fused when  the  law  has  been  fairly  presented  in  the  main  charge 
of  the  court,  as  their  tendency  is  to  distract  the  attention  of  the 
jury  by  giving  undue  prominence  to  such  issues.-1  It  is  only  where 
the  repetition  of  instructions  gives  undue  prominence  to  one  phase 
of  the  case,  calculated  to  prejudice  a  party  by  inducing  the -jury  to 
believe  the  issue  so  presented  is  the  controlling  one,  that  such  ad- 
ditional or  repeated  instructions  are  objectionable.4 

§581.  Misleading;  harmless  error. 

All  that  is  required  is  that  the  charge  be  correct  in  its  applica- 
tion to  the  particular  case;  and  the  mere  occurrence  of  an  imma- 

followed  in  estimating  the  damages,  as  he  believes  it  to  be.  Galveston  Oil  Co. 
v.  Malin,  60  T.  645. 

i  G.,  C.  &  S.  F.  Ry.  Co.  v.  Hodges,  76  T.  90  (13  S.  W.  Rep.  64);  Kirby  v.  Estill,  75 
T.  484  (12  S.  W.  Rep.  807);  Schneider  v.  McCoulsky,  6  Civ.  App.  501  (26  S.  W.  Rep. 
170);  Austin  &  N.  W.  Ry.  Co.  v.  Beatty,  6  Civ.  App.  650  (24  S.  W.  Rep.  934). 

2E.  T.  Fire  Ins.  Co.  v.  Dyches,  56  T.  565;  Tucker  v.  Hamlin,  60  T.  171;  School- 
her  v.  Hutchins,  66  T.  324  (1  S.  W.  Rep.  266);  Hays  v.  Hays,  66  T.  606  (1  S.  W. 
Rep.  895);  I.  &  G.  N.  Ry.  Co.  v.  Eckford,  71  T.  274  (8  S.  W.  Rep.  679);  Tex.  Mex. 
By.  Co.  v.  Douglass,  73  T.  325  (11  S.  W.  Rep.  333);  Rousel  v.  Stanger,  73  T.  670 
(11  S.  W.  Rep.  970);  Tex.  T.  Ry.  Co.  v.  Johnson,  75  T.  158  (12  S.  W.  Rep.  482);  Mo. 
Pac.  Ry.  Co.  v.  Henry,  75  T.  220  (12  S.  W.  Rep.  828);  Tex.  Pac.  Ry.  Co.  v.  Over- 
heiser,  76  T.  437  (13  S.  W.  Rep.  468);  G.,  C.  &  S.  F.  Ry.  Co.  v.  Hudson,  77  T.  494 
•(14  S.  W.  Rep.  158);  G.,  C.  &  S.  F.  Ry.  Co.  v.  Locker,  78  T.  279  (14  S.  W.  Rep.  611); 
Wilson  v.  Lucas,  78  T.  292  (14  S.  W.  Rep.  690);  Goodbar  v.  National  Bank,  78  T. 
461  (14  S.  W.  Rep.  851);  L  &  G.  N.  Ry.  Co.  v.  Kernan,  78  T.  294  (14  S.  W.  Rep. 
668);  Callahan  v.  Hendrix,  79  T.  494  (15  S.  W.  Rep.  593);  Bonner  v.  Glenn,  79  T. 
531  (15  S.  W.  Rep.  572);  Tennent  S.  &  E.  Shoe  Co.  v.  Partridge,  82  T.  329  (18  S.  W. 
Rep.  310);  Smith  v.  Traders'  Nat.  Bank,  82  T.  368  (17  S.  W.  Rep.  779);  Tex.  &  Pac. 
Ry.  Co.  v.  Brick,  83  T.  598  (20  S.  W.  Rep.  511);  Hernsheim  v.  Babcock,  2  S.  W. 
Rep.  880;  Smith  v.  Eckford.  18  S.  W.  Rep.  210;  Rio  Grande  B.  &  T.  Co.  v.  Varela, 
22  S.  W.  Rep.  99;  G.,  H.  &  S.  A.  Ry.  Co.  v.  Tuckett,  25  S.  W.  Rep.  150;  Stephens 
-r.  Bridge,  4  App.  C.  C.,  §  82. 

•Newman  v.  Farquhar,  60  T.  640:  Traylor  v.  Townsend,  61  T.  144. 

«Ratto  v.  Bluestein,  84  T.  57  (19  S.  W.  Rep.  338);  Jacobs  v.  Crum,  62  T.  401; 
McBride  v.  Banguss,  65  T.  174  It  is  not  error  for  the  court  to  allow  special 
charges  containing  a  "  more  specific  definition  "  and  a  fuller  and  more  particu- 
lar explanation  than  are  contained  in  the  general  charge.  Martin-Brown  Co.  v. 
Wainscott,  66  T.  131  (1  S.  W.  Rep.  264).  It  is  not  error  to  refuse  a  charge  which, 
though  abstractly  correct,  would  tend  to  eliminate  from  the  consideration  of 
the  jury  matters  necessarily  connected  with  the  subject-matter,  and  proper  to 
be  considered  in  determining  the  right  to  recover,  when  in  the  general  charge 
already  given  the  jury  has  been  properly  instructed.  Mo.  Pac.  Ry.  Co.  v.  Corn- 
•wall,  70  T.  611  (8  S.  W.  Rep.  312). 


§  581.]  CHARGING   THE   JURY.  555 

terial  error,  or  an  error  in  some  matter  of  minor  importance,  which 
manifestly  has  had  no  influence  upon  the  decision  of  the  case,  will 
not  authorize  a  reversal,  though  assigned  as  error;  nor  will  error 
which  has  been  acquiesced  in  by  the  parties  at  the  trial,  though 
;ird  as  error,  when  there  is  no  good  reason  to  apprehend  that 
it  may  have  misled  the  jury  to  the  prejudice  of  the  partv.1     Neither 
ran  it  be  assigned  as  error  that  the  court  omitted  instructions 
which  might  with  propriety  have  been  given,  when  it  does  not  ap- 
pear that  the  jury  have  in  consequence  misapprehended  the  l.i 
the  case.2     If  the  jury  have  been  misled  by  a  charge  which  is  cor- 
rect as  an  abstract  proposition,  or  their  attention  has  e\  i.l.-ntls 
b.-cii  withdrawn  from  a  matt-rial  inquiry,  and  their  verdict  n 
have  been  different  in  the  absence  of  the  charge,  a  now  trial  will 

O     ' 

be  granted/     Where,  however,  the  verdict  is  authorized  by  the 

J'arts,  and  the  justice  of  the  case  has  been  attained,  the  judgment 
will  not  be  reversed  on  account  of  an  erroneous  charge.4 

1  Hollingsworth  v.  Holshausen,  17  T.  41;  Mercer  v.  Hall,  2  T.  2*4;  Jones  T. 
Thurmond's  Heirs,  5  T.  818;  Able  v.  Lee,  6  T.  427;  Todd  v.  Caldwt-ll.  10  T.  286; 
Mills  v.  Ashe.  16  T.  295;  McFarland  v.  Wotr..rd.  Irt  T.  W:-.  Thomas  v.  Imrn 

T:  Bagly  v.  Birmingham.  23  T.  452;  Fort  v.  Barnett.  23  T.  480:  1 
T.  Blocker,  23  T.  :>.?,>;  Warren  v.  Smith,  24  T.  484;  Zeigler  v.  Stefan.  ., 
Loper  v.  Robinson.  54  T.  510;  City  of  Oalveston  v.  Morton,  58  T.  409;  11.,  E,  & 
W.  T.  Ry.  Co.  v.  Hardy,  61  T.  230:  Dawson  v.  Sparks,  1  U.  C.  785;  Lousataunnu 
v.  Lambert,  1  Civ.  App.  434  (20  S.  W.  Rep.  937).     Where  the  instructions  to  the 
jury  are  clearly  erroneous  and  calculated  to  mislead,  to  the  injury  of  a  party, 
to  sanction  the  judgment  which  follows  it  should  be  clear  that  such  a  conse- 
quence did  not  in  fact  ensue  from  the  error.    Hudson  v.  Morris,  55  T.  595. 

That  the  testimony  may  preponderate  in  favor  of  the  verdict  will  not  sustain 
it  when  an  erroneous  charge  may  have  influenced  the  jury  in  the  finding. 
Dwyer  v.  Continental  Ins.  Co.,  57  T.  181.  Unless  it  is  made  to  appear  that  an 
erroneous  charge,  which  was  calculated  to  mislead  the  jury,  did  n. 
effect,  the  judgment  will  be  reversed.  The  burden  of  showing  that  no  injury 
resulted  is,  in  such  case,  on  the  appellee.  Q.,  C.  &  8.  V.  Uy.  <  >•  r,  t  .r. .  idee,  68 
Franklin  v.  Smith,  1  U.  C.  229;  Linney  v.  Wood,  66  T.  22  (17  S.  W.  R*p. 

2  Robinson  v.  Varnell,  16  T.  882;   Cole  v.  Cole,  17  T.  4.     It  is  the  dutj  of  the 
party  desiring  additional  instructions  to  ask  for  them.    L.  &  L.  A  G.  Ins.  Co.  T. 
Ende,  65  T.  118;  Cockn-ll  v.  Cox,  65  T.  669;  Jackson  v.  Di-sli.nd-.   I  U.  I 
Sanger  v.  Craddock,  2  S.  W.  Rep.  196;  Shumard  v.  Johnson.  66  T.  70  (17  a  W. 
Rep.  398). 

»Spence  v.  Onstott,  3  T.  147;  Chandler  v.  Fulton.  10  T.  2:  I*e  v.  Haimlt 
T.  li:{;  Ponton  v.  Ballard,  24  T.  619;  Keyser  v.  Pilgrim,  23  T.  S  \u.sim 

v.  Talk  26  T.  127. 

« James  v.  Thompson,  14  T.  463;  Duffell  v.  Noble,  14  T.  64"  n.  f. 

T.  480:  Kisk  v.  Holdi-n.  17  T.  408.  A  proper  verdict  will  not  ho  disturbed  in  thy 
appellate  court  for  the  reason  that  it  was  rendered  in  disregard  or  contraven- 
tion of  an  erroneous  charge  of  the  court  below.  Men ; 

\Vli.-n  it  is  manifest  that  an  .rn>u..,us  charge  worked  no  injury,  or  where  no 
other  conclusion  than  that  am\<-d  at  by  the  jury  can  l»«  l.-k'ituiiat<-ly  deduced 
from  the  facts,  the  judgment  will  not  be  reversed.  U.,  H.  &  S.  A.  Ry.  Co.  v. 
Delahunty,  53  T.  206. 


556  CHARGING   THE   JUKY.  [§  582. 

An  erroneous  charge  upon  a  material  issue  is  not  cured  by  a  con- 
tradictory charge  given  at  the  request  of  the  party  injured  by  such 
charge.1  It  is  error  to  give  conflicting  and  irreconcilable  charges.2 

Where  contradictory  charges  are  given  which  may  be  material, 
it  ssems  a  reversal  should  follow  on  appeal.  The  proper  way  to 
correct  an  erroneous  charge  is  to  withdraw  it  from  the  jury.3  A 
verbal  withdrawal  of  a  written  instruction  which  improperly  states 
the  elements  of  damage  will  cure  the  error.4 

A  party  cannot  object  to  error  in  a  charge  which  is  in  his  favor ; 5 
nor  to  a  charge  which  is  substantially  the  same  as  one  asked  by 
him,  and  either  given  or  refused.6 

§  582.  How  charge  construed  in  determining  its  sufficiency  or  va- 
lidity. 

The  appellate  court  presumes  that  the  jury  was  composed  of  in- 
telligent men,  and  will  not  call  that  an  error  of  instruction  which 
to  the  judges  is  intelligent  and  right.7 

Instructions  will  be  taken  as  a  whole,  and  each  part  construed  in 
connection  with  the  rest;8  and  when  so  considered,  if  they  present 
the  law  applicable  to  the  case  made  by  the  pleadings  and  evidence, 
as  a  general  rule  they  will  be  sufficient.9  Isolated  parts  will  not  be 
considered  erroneous,  though  they  might  bfe  if  standing  alone.10  An 
omission  in  one  part  may  be  supplied  by  another  part ; n  and  one 
part  may  qualify  another  part,  if  the  paragraphs  are  not  contra- 
dictory.12 

1 G.,  H.  &  S.  A.  Ry.  Co.  v.  Daniels,  1  Civ.  App.  695  (20  S.  W.  Rep.  955). 

*Kraus  v.  Haas,  6  Civ.  App.  665  (25  S.  W.  Rep.  1025). 

»S.  A.  &  A.  P.  Ry.  Co.  v.  Robinson,  73  T.  277  (11  S.  W.  Rep.  275). 

4  Yoakum  v.  Mettasch,  26  S.  W.  Rep.  129. 

*Pardue  v.  James,  74  T.  299  (12  S.  W.  Rep.  1). 

6  O'Neal  v.  Knippa,  19  S.  W.  Rep.  1020;  G.,  H.  &  S.  A.  Ry.  Co.  v.  Smith,  24  S.  W. 
Rep.  668. 

1  Brunswig  v.  White,  70  T.  504  (8  S.  W.  Rep.  85),  citing  Railroad  Co.  v.  Ogier, 
85  Pa.  St.  73;  Ft  W.  &  D.  C.  Ry.  Co.  v.  Greathouse,  82  T.  104  (17  S.  W.  Rep.  834). 

8Kauffman  v.  Babcock,  67  T.  241  (2  S.  W.  Rep.  878);  Brackett  v.  Hinsdale,  2 
U.  C.  468;  Freiberg  v.  Johnson,  71  T.  558  (9  S.  W.  Rep.  455);  Moore  v.  Moore,  73 
T.  382  (11  3.  W.  Rep.  396);  Rost  v.  Railway  Co.,  76  T.  168  (12  S.  W.  Rep.  1131); 
Baker  v.  Ashe,  80  T.  356;  Morgan  v.  Giddings,  1  S.  W.  Rep.  369;  Jobe  v.  Hous- 
ton. 23  id.  408;  1  App.  C.  C.,  §  1017;  Numsen  v.  Ellis,  3  App.  C.  C.,  §  135. 

9  Brackett  v.  Hinsdale,  2  U.  C.  468. 

1°  Moore  v.  Moore.  73  T.  382  (11  S.  W.  Rep.  396). 

»  Rost  v.  Railway  Co.,  76  T.  168  (12  S.  W.  Rep.  1131). 

12  Baker  v.  Ashe,  80  T.  356  (16  S.  W.  Rep.  36).  It  cannot  be  required  that  each 
paragraph  shall  be  so  full  in  detail  as  to  be  considered  independently  of  the 
other  parts  of  the  charge.  If,  in  the  charge,  actual  and  constructive  notice  are 
defined,  it  is  not  necessary  that  such  definition  be  repeated  whenever  the  word 
notice  occurs.  Freiberg  v.  Johnson,  71  T.  558  (9  S.  W.  Rep.  455).  It  will  be  pre- 
sumed that  the  jury  considered  a  part  of  a  charge  referred  to  in  another  parL 
Mo.  Pac.  Ry.  Co.  v.  James,  10  S,  W.  Rep.  332. 


•§  583.]  riiAi:«.l\(J   THE  Ji  557 

Every  rhariro  must  l>e  trsted  by  the  facts  to  which  it  is  applica- 
ble; the  announcement,  therefore,  of  a  general  principle  in  a  charge, 
which  in  the  abstract  may  be  \vroni:,  will  not  be  cause  for  reversal 
if  it  be  so  modified  by  the  charge,  in  view  of  the  facts  of  the  case, 
that  it  could  not  affect  the  rights  of  the  party  complainant.1  A 
charge  must  not  be  taken  as  an  abstract  proposition,  but  must  be 
considered  in  connection  with  the  issue  and  the  evidence  ;*  and  all 
the  paragraphs  bearing  upon  one  issue  must  be  considered  to- 
gether.8 

In  determining  the  sufficiency  of  the  general  charge  it  should  be 
considered  in  connection  with  the  special  charges  given.4 

§  583.  Directing  a  verdict. 

A  charge  which  directs  a  verdict  to  be  rendered  for  a  party  to  a 
suit,  when  the  uncontradicted  evidence  on  all  the  issues  inv« 
clearly  entitles  him  to  such  a  verdict,  is  not  error.5  When  there  is  no 
evidence  except  that  which  establishes  facts,  and  a  conclusion  there- 
from in  favor  of  one  party,  it  is  not  error  to  instruct  the  jut 
return  a  verdict  for  such  party  ;  but  though  there  may  be  no 
troversy  as  to  the  existence  of  facts,  yet  when  the  conclusion  to  be 
drawn  from  them  is  the  subject-matter   of  dispute,  it  is  error  to 
direct  a  verdict  for  either  party.6    Where  there  is  some  evidence 
tending  to  prove  a  question  in  issue  it  must  be  left  to  the  jury. 
The  court  may  properly  direct  a  verdict  for  defendant  only 
there  is  no  evidence  tending  to  establish  the  fact.7    When 
is  evidence  in  favor  of  either  party,  it  is  error  for  the  court  to 
charge  the  jury  to  return  a  verdict  against  such  party,  even  though 
the  weight  of  evidence  may  be  against  him.8 

iTex.  &  Pac.  Ry.  Co.  v.  Wright.  63  T.  515. 

*Rosenthal  v.  Middlebrook,  63  T.  333;  Davis  v.  Loftin.  6  T.  489. 

»  St  Louis  &  S.  F.  Ry.  Co.  v.  McClain,  80  T.  85  (15  a  W.  Rep.  789X     V. 
charge  in  two  separate  paragraphs  instructed  the  jury,  first,  that  plaintiff  shoul.1 
recover  if  the  injuries  suffered  by  him  were  caused  by  tl  "<*«*  of  the 

defendant,  and  in  the  next,  proper  care  on  part  of  the  plaintiff  was  defli 
was  held  that  the  jury  must  be  supposed  to  have  consi.l.  iv-l  th.-  s.  ,-,.n.l  para- 
graph as  well  as  the  first    G.,  H.  &  S.  A.  Ry.  Co.  v.  Matula,  79  T.  .',77  (r,  - 
KV]..  573). 

*  Campbell  v.  Fisher.  24  S.  W.  Rep.  661. 

»Easbn  v.  Eason.  61  T.  ^:>:  T.-.-il  v.  TVrn-11.  r,s  T.  -'YT;  Corley  v.  Ren*,  24  8.  W. 
KVp.  H.T.:  Stringfellow  v.  Montgomery.  57  T.  849. 

•Supreme  Council  of  A.  L.  of  H.  v.  Anderson,  61  T.  296. 

•Newberger  v.  Heintze,  8  Civ.  App.  259  (23  a  W.  Rep.  867);  Dittman  v.  \\ 
::i  s.  W.  Rep.  07:  Kllis  v.  Rosenberg,  29  a  W.  Rep.  519;  Fitzgerald  v.  Hart.  17 
s   \V.  Rep.  869. 

spott.-r  v.  \Vh.-at.  53  T.  401.    Where  the  defense  to  a  note  is  fraud  and  a  fail- 
ure of  consul. -r;iti< •  n.   it  is-.-rmr  t<>  .iir.-.-t  :i  '    plaintiff 
,-vi.li-iu-e.     Fit  wnil'i  v.  Hart.  -.'.'I  S.  \V.  K.-|..  I  •'  th.-  plaintiff  has  \-. 
aprima  facie  legal  title  in  himself,  and  the  evidence  of  defendant  does  not  es- 


553  CHARGING   THE   JURY.  [§  583_ 

The  duty  of  the  judge  is  to  declare  negatively  that  there  is  no 
evidence  to  go  to  the  jury,  but  not  affirmatively  that  a  certain  issue 
is  proved.1 

tablish  title  in  him,  it  is  proper  for  the  court  to  instruct  the  jury  to  return  a 
verdict  for  plaintiff.  Montgomery  v.  Carlton,  56  T.  361. 

When  the  appellate  court  has  decided  the  legal  effect  of  paper  evidences  of 
title  to  be  that  the  title  was  thereby  vested  either  in  plaintiff  or  defendant,  it 
is  not  error  for  the  trial  court,  on  another  trial  of  the  same  cause  upon  the 
same  evidence,  to  direct  the  jury  to  return  a  verdict  for  the  particular  party  in 
whom  the  title  vested.  Frankland  v.  Cassaday,  62  T.  418.  Where  the  evidence 
showed  that  the  death  for  which  damages  are  claimed  was  attributable  to  the 
negligence  of  the  deceased,  without  fault  on  the  part  of  the  defendant  or  its 
employees,  it  was  the  duty  of  the  court  to  instruct  the  jury  to  find  for  the  de- 
fendant. Rozwadosfskie  v.  Railway  Co.,  1  Civ.  App.  487  (20  S.  W.  Rep.  872). 

1  &  A.  &  A.  P.  Ry.  Co.  v.  Long,  4  Civ.  App.  497  (23  S.  W.  Rep.  499). 


CHAPTER  XXXVL 


DELIBERATIONS  OF  THE  JURY  —  RETURNING  THE  VERDICT. 


584  Foreman  of  jury. 

585.  May  take  papers  with  them. 

586.  Jury  to  be  kept  together;  duty 

of  officer  in  charge:  caution  in 
case  they  are  permitted  to  sep- 
arate. 

587.  Misconduct  of  jurors;  affidavits 

not  received  to  impeach  ver- 
dict 

588.  May    communicate    with    the 

court. 

589.  May  ask  further  instructions. 

590.  May  have  witness  re-examined. 

591.  May  examine  depositions. 

592.  Discharged  in  case  of  disagree- 

ment 


§  593.  Discharged  in  cue  of  sicknes* 
etc. 

594.  Discharged   by   final    adjourn- 

ment 

595.  Case  to  be  tried  again  in  cue  of 

discharge  of  jury. 

596.  Court  may  proceed  with  other 

business  during  absence. 

597.  Returning  the  verdict 

598.  Verdict  to  ba   in  writing  and 

signed. 

599.  Receiving  the  verdict;  disagree- 

ment 

600.  Polling  the  jury. 

601.  Verdict  informal  or  defe< 

or  not  responsive  to  the 


§  684.  Foreman  of  jury. 

The  court  may  appoint  one  of  the  jury  to  be  foreman.  In  cue 
no  foreman  is  appointed  by  the  court,  the  jury  may  elect  a  fore- 
man from  their  number,  who  must  preside  at  their  deliberations  and 
see  that  they  are  conducted  with  regularity  and  in  order.1  The 
verdict  must  be  signed  by  the  foreman.* 

£  685.  May  take  certain  papers  with  them. 

The  jury  may  take  with  them  in  their  retirement  the  charges 
and  instructions  in  the  cause,1  the  pleadings  and  any  \\i 
dence  except  the  depositions  of  witnesses.  But  when  part  only  of 
a  paper  has  been  read  in  evidence,  the  jury  shall  not  take  the  same 
with  them  unless  the  part  so  read  to  them  is  detached  from  that 
which  was  excluded.4 

The  jury  may  read  the  pleadings  in  their  retirement,  bat  it  is  not 
tin  ir  duty  to  do  so,  and  it  is  error  to  charge  them  thai 
such  error  is  not  ground  for  reversal  unless  its  result  was  to  mislead 
the  jury,  and  such  a  result  is  claimed  on  appeal.'    It  was  proper  to 

IR.&  isoa. 

IR.S.189& 

» R.  8. 1808, 1821.    Instructions  asked  and  refused  should  not  be  taken.    Rule  62. 

«R,S.180a 

»L  A  O.  N.  Ry.  Co.  v.  Leak,  64  T.  654    Where  the  records  of  deeds  were  read 


560  DELIBERATIONS   OF  JURY RETURNING   VERDICT.  [§  586. 

refuse  to  allow  the  jury  to  take  with  them  in  their  retirement  a 
map  made  by  a  witness  in  response  to  interrogatories  and  illustra- 
tive of  his  answers.1  A  leaf  from  a  family  Bible  detached  therefrom 
and  made  part  of  the  answers  of  a  witness  testifying  by  depositions 
on  the  trial  was  separated  from  the  depositions  and  was  taken  by 
the  jury  in  their  retirement.  This  was  error.  "Written  evidence 
may  usually  be  taken  out  by  the  jury;  but  depositions  are  excepted, 
Ixvause  the  party  whose  case  is  sustained  by  depositions  would  have 
an  improper  advantage  over  him  whose  proofs  were  oral  only.2 

£  586.  Jury  to  be  kept  together;  duty  of  officer  in  charge;  caution 
in  case  they  are  permitted  to  separate. 

The  jury  may  either  decide  the  case  in  court  or  retire  for  delib- 
eration. If  they  retire,  they  must  be  kept  together  in  some  con- 
venient place,  under  the  charge  of  an  officer,  until  they  agree  upon 
a  verdict,  or  are  discharged  by  the  court ;  but  the  court  may,  in  its 
discretion,  permit  them  to  separate  temporarily  for  the  night  and  at 
their  meals,  and  for  other  proper  cause.  The  officer  having  the  jury 
under  his  charge  shall  not  suffer  any  communication  to  be  made  to 
them  or  make  any  himself,  except  to  ask  them  if  they  have  agreed 
upon  their  verdict,  unless  by  order  of  the  court;  and  he  shall  not, 
before  their  verdict  is  rendered,  communicate  to  any  person  the 
state  of  their  deliberations  or  the  verdict  agreed  upon.  If  the  jury 
are  permitted  to  separate,  either  during  the  trial  or  after  the  case 
is  submitted  to  them,  they  must  be  admonished  by  the  court  that 
it  is  their  duty  not  to  converse  with  or  suffer  themselves  to  be  ad- 
dressed by  any  other  person  on  any  subject  connected  with  the  trial.3 

It  is  within  the  discretion  of  the  trial  judge  to  permit  a  jury  to 
separate  after  the  trial  has  begun,  without  regard  to  the  consent  of 
counsel,  and  the  action  of  the  judge  in  this  regard  will  afford  no 
ground  for  reversal  when  no  abuse  of  such  discretion  is  shown.4 

in  evidence  in  lieu  of  the  originals,  it  was  held  proper  to  refuse  to  permit  the 
jury  to  take  the  records  with  them  in  their  retirement.  Such  records  should 
not  be  taken  beyond  the  control  of  the  clerk  or  his  deputies.  Collins  v.  Box,  40 
T.  191. 

1  Snow  v.  Starr,  75  T.  411  (12  S.  W.  Rep.  673). 

2  Chamberlain  v.  Pybas,  81  T.  511  (17  S.  W.  Rep.  50),  citing  Pridgen  v.  Hill,  12 
T.  374;  Rawsou  v.  Curtiss,  19  111.  485.     It  is  error  to  permit  the  jury  to  take  a 
part  of  a  deposition  in  their  retirement;  and  it  was  held  a  clear  infringement  of 
the  statute  to  detach  from  a  deposition  a  statement  of  account  sales  and  send  it 
to  the  jury.    G.,  C.  &  S.  F.  Ry.  Co.  v.  Hughes,  31  S.  W.  Rep.  411. 

»  R.  S.  1304-1306. 

4  Noel  v.  Denman,  76  T.  306.  In  this  case  the  judge  states  that  "the  cause  had 
been  on  trial  all  day,  and  it  was  then  after  dark;  a  portion  of  the  jury  had  been 
up  on  a  case  the  night  before,  and  they  were  allowed  to  separate  after  being  ap- 
propriately instructed  not  to  talk  about  the  case,  and  not  to  permit  any  person 
to  talk  about  it  to  them  or  in  their  presence.  Held,  not  an  abuse  of  discretion. 

In  San  A.  &  A.  P.  Ry.  Co.  v.  Bennett,  76  T.  151  (13  S.  W.  Rep.  319),  the  jury 


§§i>7    589.]       I'l.Ml;;  .U  KV  --  KhTLKXIXO  VERDICT.  561 

?  587.  Misconduct  of  jurors;  affidavits  not  received  to  impeach  ver- 
dict. 

Affidavits  of  jurors  as  to  misconduct,  or  as  to  their  understand- 
f  the  facts,  will  not  be  received  to  impeach  their  verdict,  or  in 
aii  I  «>f  a  motion  for  a  new  trial.1     It  is  said  that  the  practice  of  per- 
mitting jurors  to  make  affidavit  of  facts  which  transpired  in  the 
jury  room,  and  to  state  how  they  made  up  their  verdict,  in  order 
'•w  that  tlio  verdict  is  erroneous  and  ought  to  be  set  aside,  is 
wholly  irrcirular  and  cannot  be  tooseverely  reprobated.1  Affidavits 
to  the  effect  that  certain  of  the  jurors  misunderstood  certain  testi- 
mony are  properly  rejected;1  or  that  the  verdict  was  assented  to 
under  restraint.4 

Conversation  of  a  juror  with  plaintiff,  outside  of  the  court  room, 
after  all  the  evidence  was  in,  was  held  a  ground  for  a  new  trial* 
That  one  of  the  plaintiffs,  during  the  progress  of  the  trial,  mingled 
with  and  talked  to  the  jurors  when  they  were  out  of  the  court  room, 
and  after  tin-  ivturn  of  the  verdict  invited  them  to  a  saloon  to  drink 
liquors  at  his  expense,  which  invitation  was  accepted,  was  held  not 
sufficient  to  authorize  a  new  trial,  without  a  showing  that  the  jury 
were  probably  influenced  to  the  injury  of  the  defendant.' 

?  588.  May  communicate  with  the  court. 

When  the  jury  wish  to  communicate  with  the  court,  they  must 

make  their  wish  known  to  the  officer  having  them  in  charge,  who 

will  inform  the  court  thereof,  and  they  may  be  brought  into  open 

.  and  through  their  foreman  state  to  the  court,  either  verbally 

or  in  writing,  what  they  desire  to  communicate.7 

?  589.  May  ask  further  instructions. 

The  jury  may,  after  having  retired,  ask  further  instruction  of  the 
court  touching  any  matter  of  law.  For  this  purpose  they  must  ap- 
pear before  the  judge  in  open  court  in  a  body,  and  through  their 
foreman  state  to  the  court,  either  verbally  or  in  writing,  the  par- 
ticular question  of  law  upon  which  they  doire  further  instruction, 
and  the  court  must  give  such  instruction  in  writing;  but  noinstruc- 

were  instructed  and  permitted  to  separate  OH  adjournment  for  dinner.    This 
was  held  prop 

1 1.  &  G.  N.  Ry.  Co.  v.  ( ;,,r.|,,n.  7  J  T.  II    US.  \V.  I:   ;  '  Bank 

v.  Bates,  72  T.  1:57  i  in  s.  \V.  I:  T.  240  (14   - 

Rep.  1010);  Ma*..,  v.  RoMll,  1  T.  7.-1:  II  Burns  v.  Pain*, 

s  T.  l-v.»:  Hal.  y  v.  Cusenbary,  30  a  W.  Rep.  587;  (iiirl.-y  v.  Clarkaon,  80  &  W. 
Bep.360. 

-Whitlow  v.  M...T-.  1  A|.|.   - 

ITOOKBb  v.  I'.al.K  -J  A,,,,.  <  I'.ir.lwll,  il  T.  3Wt 

«BoetRe  v.  I -in.  la.  H  T.  nn. 

Cav.Schr 

«w.  r.  i  I.P.C.C.,  . 

•  R.S.  i 


DELIBERATIONS   OF   JURY  —  RETURNING   VERDICT.       [§§  590-iV.I-L 

tion  shall  be  given  except  upon  the  particular  question  on  which  it 
is  asked.1 

§  500.  May  have  witness  re-examined. 

If  the  jury  disagree  as  to  the  statement  of  any  particular  witness, 
they  may,  upon  applying  to  the  court,  have  such  witness  again 
brought  upon  the  stand,  and  he  shall  be  directed  by  the  judge  to 
detail  his  testimony  to  the  particular  point  of  disagreement  and  no 
other,  and  as  nearly  as  he  can  in  the  language  used  upon  his  exam- 
ination.2 

§  691.  May  examine  depositions. 

If  the  jury  disagree  as  to  any  portion  of  a  deposition  or  other 
paper  not  carried  with  them  in  their  retirement,  the  court  may 
permit  such  portion  of  the  deposition  or  paper  to  be  again  read  to 
them.3 

g  592.  Discharged  in  case  of  disagreement. 

The  jury  may,  after  the  cause  is  submitted  to  them,  be  discharged 
by  the  court  when  they  cannot  agree  and  both  parties  consent  to- 
their  discharge,  or  when  they  have  been  kept  together  for  such 
time  as  to  render  it  altogether  improbable  that  they  can  agree.4 

§  593.  Discharged  in  case  of  sickness,  etc. 

The  jury  may  be  discharged  by  the  court  when  any  calamity  or 
accident  may,  in  the  opinion  of  the  court,  require  it,  and  they  shall 
be  so  discharged  when  by  sickness  or  other  cause  their  number  i& 
reduced  below  the  number  constituting  a  jury  in  such  court.5  This 
article  seems  to  be  in  conflict  with  other  provisions  of  the  statute. 
The  number  required  to  constitute  a  jury  in  the  district  court  is 
twelve;6  but  it  is  provided  that  if  one  or  more  jurors,  not  exceed- 
ing three,  may  die  or  be  disabled  from  sitting,  those  remaining  shall 
have  power  to  render  a  verdict.7  Article  1323  of  the  Kevised  Stat- 
utes also  contemplates  a  verdict  by  a  less  number  than  twelve.  The 
provision  is  that  if,  pending  a  trial  in  the  district  court,  any  juror 
ina}r  die  or  be  disabled  from  sitting,  and  the  verdict  is  rendered  by 
the  remaining  jurors,  it  shall  be  signed  by  all  of  them. 

§  594.  Discharge  by  final  adjournment. 

The  final  adjournment  of  the  court  before  the  jury  have  agreed 
upon  a  verdict  discharges  them.8 

IRS.  1308, 1321. 

2  R  8.1309. 

»R  8.1310. 

«RS.  1311. 

»R  8.1312.    See  §  472,  ante. 

6R  S.  3228. 

•  R  S.  3229;  Const,  art.  V,  §  13. 

»R  a  1313. 


IU.l.Il;l.l:A!I..\s   OF   Jt'KY —  RETTRNIXG    VKJ.; 

?;  595.  Case  to  be  tried  again  in  case  of  discharge  of  jury. 

When-   a  jury  has    l.eeu   diacharg«.'d  without  having    r.-; 
again  tried  at  the  same  or  anottft 

96.  Court  may  proceed  with  other  business  during  absence  of 
jury- 

The  o.urt  may.durino;  the  retirement  of  the  jury,  proceed  to  an- 
other business  and  adjourn  from  time  to  time,  hut  i>  d«-,-med 
for  all  purposes  connected  with  the  case  before  the  jin 

$  597.  Returning  the  verdict. 

Tin-  statute  provides  that,  when  the  jury  have  agreed  upon  t! 
verdict,  they  shall  be  conducted   into  court  hy  the   oflicer  ha 
them  in  charge,  and  their  names  shall  be  called  by  ti 
they  shall  deliver  their  verdict  to  the  clerk.1 

£  598.  Verdict  to  be  in  writing  and  signed. 

The  vei-dict  must  be  in  writing  and  signed  by  the  foreman;  ami 
where,  pending  a  trial  in  the  district  court,  any  juror  mav  die  or 
be  disabled  from  sitting,  and  the  verdict  is  rendered  by  th- 
ing jurors,  the  verdict  must  be  signed  by  all  of  such  remaining 
jurors.4 

?  599.  Receiving  the  verdict;  disagreement. 

( >n  receiving  the  verdict  from  the  jury  the  clerk  reads  it  al- 
and inquires  of  the  jury  if  such  is  their  verdict;  if  anv  juror 
a^re.-s  to  the  verdict,  the  jury  are  sent  out  again.     If  no  disagree- 
ment is  expressed,  and  neither  party  requires  the  jury  to  be  polled, 

» R  S.  1314. 
IR.8 

*R  -  V  jury  in  the  county  court  returned  their  pi 

at  hi*  residence,  and  n<-t  in  open  court.     This  occurred  in  th«-  ni>;lit. 
cased  one  of  the  jurors  from  bi  nt  at  < -c-urt  n«-xt  innrnin^.     On  the  n*xt 

morning,  five  of  the  jurors  U-iiiu  ;>n-s«.ut  in  o|*-n  court,  tin-  v.-nlict  was  read  by 
tlu-  clerk  and  assented  to  by  the  jurors   |>n -^-ui.  ami  tin-  judp'  told  tlie  | 
that  it  i-itli.-r  i-f  them  de-ir.'d  the  absent  juror  to  !*•  pr.--.nt.  h«>  would  «et: 
him.  1'iit   neither  [uirty  retpiested  this  t<»  !»•  done.     One  of  them 
manner  of  returning  and  receiving  the  \.-nlict.  and  it  wa»  held  that  the  objec- 
tion was  fatal  to  the  validity  of  the    verdict.     The  verdict  must  U-   i 
open  <»nrt.  )>y  a  jury,  ami  the  parties  must  have  the  op)  '•>  |--11  tlw 

jury.     Whitlow  v.  M.*,re.  1  A  pp.  ('.  Q,  ?  KIJ2. 

4 R  -  «.    The  record  not  Hhowin^  that  t  • 

was  signed,  hut  the  judgment  reciting  that  the  jury  returned  ther  verdict.  »tat- 
^  hat  it  was.  it  will  not  be  presumed  that  tlie  verdict  wa*  not  signed.    Doujc- 
liaker, 79  T.  499.     Althou-h  two  v,  r-li.  t-  «•  •!••  found  hy  the  jury,  that  only 
will  U-  considered  as  the  proju-r  verdict  upon  which  the  judjrment  is  bam-.i 
is  it  necessary  that  the  vrrilict  !•«•  incorporated  in  the  judgment,  with  or  \\ith 
out  the  signature  of  the  foreman  of  the  jury  attached  thereto.    McKJniMO  T. 
Reliance  L.  Co.,  63  T.  30. 


564  DELIBERATIONS    OF   JUKY RETURNING   VERDICT.       [§§600,601. 

the  court  receives  the  verdict  if  it  is  otherwise  sufficient,  and  enters 
a  minute  thereof  on  the  docket,  and  the  jury  are  then  discharged.1 

§  600.  Polling  the  jury. 

When  the  verdict  is  announced  either  party  may  require  the  jury 
to  be  polled.  This  is  done  by  the  clerk  or  judge  asking  each  juror 
separately  if  such  is  his  verdict;  if  any  juror  answers  in  the  nega- 
tive the  jury  are  again  sent  out  for  further  deliberation;  but  if  each 
juror  concurs,  the  verdict  is  received  and  noted  in  the  docket,  ex- 
cept in  the  cases  provided  for  in  the  succeeding  section,  and  the 
jury  are  discharged.2 

§  601.  Verdict  informal  or  defective,  or  not  responsive  to  the  issues. 

If  the  verdict  is  informal  or  defective  the  court  may  direct  it  to 
be  reformed  at  the  bar,  and  where  there  has  been  a  manifest  mis- 
calculation of  interest,  the  court  may  direct  a  computation  thereof 
at  the  bar,  and  the  verdict  may,  if  the  jury  assent  thereto,  be  re- 
formed in  accordance  with  such  computation.  If  the  verdict  is  not 
responsive  to  the  issues  submitted  to  the  jury,  the  court  must  call 
their  attention  thereto  and  send  them  back  for  further  delibera- 
tion.3 

It  is  held  to  be  within  the  discretion  of  the  court  to  call  the  jury 
together  after  they  have  rendered  a  verdict  and  been  discharged, 
and  to  receive  from  them  an  amended  verdict.4  The  jury  brought 
into  court  a  verdict  finding  for  plaintiff  $500  actual  and  $4,500 
exemplary  damages.  There  was  no  issue  as  to  exemplary  damages, 
and  plaintiff  had  received  severe  injuries.  The  judge  refused  to 
receive  the  verdict,  instructing  them  that  they  could  not  find  exem- 
plary damages.  The  jury,  after  short  consultation,  returned  a  ver- 
dict for  plaintiff  for  $5,000.  This  was  received  and  judgment  was 
rendered  thereon.  This  was  held  to  be  the  proper  practice.5 

IRS.  1324. 

2R.  S.  1325;  Hancock  v.  Winans,  20  T.  320. 

SR.  S.  1326,  1327. 

*  Howard  v.  Kopperl,  74  T.  494  (5  S.  W.  Rep.  627).  The  original  plaintiff  hav- 
ing died,  the  amendment  consisted  in  omitting  his  name  from  the  amended 
verdict. 

&  Ft.  W.  &  D.  C.  Ry.  Co.  v.  Mackney,  83  T.  410  (18  S.  W.  Rep.  949).  Action  to 
foreclose  a  vendor's  lien  on  lots  2  and  3.  The  jury  returned  a  verdict  for  lots 
3  and  4,  and  were  discharged.  Counsel  discovered  the  error  while  most  of  the 
jury  were  yet  in  the  court  room,  and  the  court  recalled  them  and  directed  them 
to  compare  the  descriptions  in  the  petition  with  the  verdict.  They  then  re- 
turned a  verdict  for  lots  2  and  3,  and  it  was  held  that  there  was  no  error  in  the 
absence  of  a  showing  of  injury.  Sigel  v.  Miller,  25  S.  W.  Rep.  1012.  And  see 
McKean  v.  Paschal,  15  T.  37;  Salinas  v.  Stillman,  25  T.  12. 

In  trespass  to  try  title  the  court  instructed  the  jury  that  if  they  found  for  the 
plaintiff  at  all,  they  would  allow  him  a  specified  number  of  acres.  They  re- 
turned a  verdict  for  more  than  the  amount  specified.  The  court  called  their 


1.]  I'M  IHKRATIOXS   OF   JURY EETCR.V  !  )ICT. 

It  is  proper  to  allow  the  jury  to  correct  tlu-ir  as  t«>  :\ 

clerical  omission,  or  so  as  to  make  it  express  dearly  \\hat 
mean.1 

atti -ution  to  the  section  of  the  charge  indicating  the  amount  they  should  find, 
if  anything:  and  thereupon.  ;.t  tin-   r.  cjiu-st  of  the  jury,  and  in  tli.-ir  presence, 
the  court  corrected  the  verdict  so  as  to  conform  to  the  charge.   The  juror- 
and  all  of  them,  assented  to  the  correction.    There  was  no  error  in  this.     llil- 
burn  v.  Harrell,  29  S.  \V.  li.-p.  1)25. 

1  Fn-ili-rick  v.  Hamilton,  38  T.  :J21.     After  the  case  was  submitted,  tin-  court 
being  about  to  take  a  recess  for  dinner,  it  was  agreed  by  tin-  panic*  that  th«- 
jury  should  return  their  verdict  to  the  clerk  during  the  recess  of  the 
The  jury  returned  their  verdict,  but  it   \va>  defective,  it  only  U-in^r.  "  We  find 
for  the  plaintiff,"  and  then  dispersed  and  went  tod imu>r.    After  the  recess  thej 
were  called  together  by  the  court,  at  the  instance  of  the  plaintiff,  and  tht>  case 
a>;ain  submitted  to  them,  and  they  returned  a  verdict  for  the  plaintiff  for  a 
specific  amount    Held,  that  there  was  no  error.     McKean  v.  Paschal.  !•"• 
But  a  jury,  after  they  have  been  discharged  and  dispersed,  cannot  > 
and  allowed  to  change  the  substance  of  the  ver  !ict  they  !:  :ve  rendered.    Th« 
farthest  that  courts  have  gone  in  permitting  the  amendment  of  v.  r  h.-t-  n 
cases  is,  when  the  jury  have  decided  the  issue,  but  have  failed  to  return  a  com- 
plete verdict;  as,  for  instance,  in  an  action  for  a  sum  certain  in  money  when 
they  have  found  for  the  plaintiff,  and  nothing  remains  to  complete  tin-  \ 
but  the  computation  of  the  sum,  to  permit  them  to  make  the  computation,. 
Salinas  v.  Stillman.  25  T.  12,     In  Thomas  v.  Zushlag,  2.~>  T.  - 
turned  a  sealed  verdict  as  follows:  "We,  the  jury,  find  that  the  plaintiff  is 
entitled  to  the  sum  of  $600  as  wages,  for  the  work  performed  by  him."    Th« 
next  morning,  after  having  dispersed,  the  jury  answered  to  their  names  whea 
the  verdict  was  read  in  court;  whereupon  the  court  sent  the  jury  back  to  com- 
plete the  verdict  by  finding  upon  another  issue.  It  was  held  there  was  no  error. 


CHAPTER  XXXYII. 


THE  VERDICT. 


C02.  General  verdict. 

603.  Special  verdict;  special  issues. 

604.  Must  cover  all  the  issues;  con- 

clusions of  fact  on  trial  by  the 
judge. 

605.  Defective  or  erroneous  findings 

of  fact. 

606.  Form  of  verdict. 


§  607.  Certainty  required. 

608.  Must  respond  to  the  issue. 

609.  Must    comprehend    the    whole 

issue. 

610.  Finding  as  to  damages. 

611.  Value  of  personal  property,  how 

assessed. 

612.  Compromise  verdict. 


§  602.  General  verdict. 

The  verdict  of  a  jury  is  either  general  or  special.  A  general  ver- 
dict is  one  whereby  the  jury  pronounce  generally  in  favor  of  one 
or  more  parties  to  the  suit  upon  all  or  any  of  the  issues  submitted 
to  them ; l  and  is  not  rendered  special  by  the  fact  that  it  designates 
the  grounds  on  which  it  is  based.2  The  statute  authorizes  either  a 
general  or  a  special  verdict,  but  not  both  in  the  same  case;3  the 
practice  of  requiring  a  general  verdict  and  also  special  findings  on 
issues  submitted  is  not  authorized.4  If  the  two  verdicts  are  consist- 
ent and  the  same  judgment  would  follow  upon  each,  the  irregularity 
is  of  no  consequence.  But  where  the  finding  upon  special  issues  is 
contradicted  by  the  general  verdict,  no  judgment  can  be  rendered 
and  the  verdict  should  be  set  aside.5 

A  special  verdict  reiterates  all  the  facts  alleged  which,  in  the  judg- 
ment of  the  jury,  are  sustained  by  the  proofs.  A  general  verdict  is  a 
finding  by  the  jury  in  the  terms  of  the  issue  or  issues  submitted  to 
them,  wholly  or  in  part,  for  the  plaintiff  or  defendant,  and  in  its 
most  general  form  is:  "We,  the  jury,  find  for  the  plaintiff;"  that 
is,  they  find  the  material  facts  in  dispute,  as  defined  in  the  plead- 
ing, in  favor  of  the  plaintiff.  In  an  action  on  a  note,  such  a  verdict 
would  be  sufficient,  unless  from  the  pleadings  and  facts  a  different 
amount  than  that  stated  in  the  note  ought  to  be  allowed,  as  in  case 

1  R.  S.  1328,  1329. 

2  Shifflet  v.  Morelle,  68  T.  382  (4  S.  W.  Rep.  843). 

3  Cole  v.  Estell,  6  S.  W.  Rep.  173. 

4  Dwyer  v.  Kalteyer,  68  T.  554  (5  S.  W.  Rep.  75).    While  it  is  irregular  to  sub- 
mit to  the  jury  special  issues  and  also  to  require  a  general  verdict,  it  will  not 
afford  ground  for  reversing  a  judgment  unless,  from  an  examination  of  the  case, 
it  appears  probable  that  injury  resulted  therefrom.    Heflin  v.  Burns,  70  T.  347 
(8  S.  W.  Rep.  48). 

»  Blum  v.  Rogers,  71  T.  668  (9  S.  W.  Rep.  595). 


§  603.]  THE    VERDICT. 

of  payments,  offsets,  or  other  matters  pleaded  and  proved  which  re- 
i  he  amount  to  be  recovered.  In  actions  sounding  in  damage*, 
or  where  damans  may  be  recovered  incidentally,  and  where  dates, 
amounts,  and  the  like,  need  not  be  stated  accurately  or  proved  as 
stated,  there  >hould,  with  a  general  finding  for  the  plaintiff,  be  abo 

•vial  finding  of  the  amount.1 

"Where  the  question  of  fraud  or  notice  was  the  controlling  issue  in 
the  case,  a  general  linding  for  the  defendant  on  account  of  fraud 
i.eld  a  finding  of  all  the  material  facts  well  pleaded  in  the  an- 
Where  the  suit  was  upon  a  verbal  promise  to  pay  a  partic- 
ular sum.  and  the  statute  of  frauds  was  pleaded  as  the  only  defense, 
a  general  verdict  for  plaintiff  was  held  sufficient  to  support  a  judg- 
ment for  the  amount  claimed.1 

?'  603.  Special  verdict;  submitting  special  issues. 

A  special  verdict  is  one  wherein  the  jury  find  the  facts  only  on 
-  made  up  and  submitted  to  them  under  the  direction  of  the 
court.  It  must  find  the  facts  as  established  by  the  evidence,  and 
not  the  evidence  by  which  they  are  established,  and  the  findings 
must  be  such  as  that  nothing  remains  for  the  court  but  to  draw 
from  such  facts  the  conclusions  of  law.  Such  verdict  is,  as  between 
the  parties,  conclusive  as  to  the  facts  found.4  It  is  held  that  sub- 
mitting special  issues  for  the  jury  to  find  is  a  matter  largely  in  the 
discretion  of  the  court,  and  that  the  action  of  the  court  will  not  be 
M>d  unless  it  is  plain  that  there  has  been  an  abuse  of  the  discre- 
tion to  the  injury  of  the  complaining  party.4  The  statute  provides 
that  the  jury  shall  render  a  general  or  a  special  verdict,  as  shall  be 
directed  by  the  court,  at  the  request  of  a  party  to  the  suit.1  It  will 
be  noted  that  in  Tex.  A:  Par.  Ky.  Co.  v.  Mill.-V.  7;»  T.  >  .  &  W. 
K.  ]•.  •2>'<-l>,  the  supreme  court,  in  holding  the  statute  directory  only, 
fails  to  quote  the  statute  correctly,  in  omitting  the  clause  "at  the 
request  of  a  party  to  the  suit."7 

1  Darden  v.  Matthews,  22  T.  320;  Smith  v.  Johnson,  8  T.  4ia 

2  Hamilton  v.  Rice,  15  T 

» Warivn  v.  Smith.  24  T.  484.  "We,  the  jury,  render  a  verdict  in  favor  of 
plaintitf."  li.-ld  sufficient  to  .support  a  jud^im-nt  where  defendants  interposed 
n<>  defense,  but  made  attacks  upon  the  case  of  plaintiff,  the  points  of  attack 
having  IM-.-H  >ulmiittrd  in  the  charge  of  the  court  to  the  jury.  Martin  Brown 

i  ill.  77  T.  199  (13  &  W.  Rep.  '-•:  :du-t  in  favor  of  one  pa 

always  taken  to  be  a  verdict  again>t  tit-  othrr.     It  is  unusual  in  an  ordinary 
case  to  name  or  mention  the  party  a^ain-i  whom  thy  verdict  is  found. 
Tex.  *  M.-x.  Ky.  C<>.  v.  (iallalu-r.  Ttt.  0-:,  ,1:,  S.  \V.  Rep,  «WX 

«R 

»Tex.  &  Pac.  Ry.  Co.  v.  Miller.  79  T.  :  Rep.  8M);  La  Rue  v.  Bower, 

1  API-,  t  *>k.  4ii  T.  288. 

'.  jx  119;  I; 

"See.  also,  CoK-  v.  Crawford.  «VJT.  r.M  IS  w  i:  ,. -'.I'.  .  "h.r-  th«-  matter  is 
held  discretionary,  but  the  com  ;  <na  of  the  statute. 


568  THE   VERDICT.  [§  603, 

Where  several  grounds  of  defense  are  pleaded  and  testimony  is- 
exhibited  upon  them,  the  plaintiff,  if  it  be  material  to  know  upon 
what  issue  the  verdict  may  be  given,  may  have  special  issues  sub- 
mitted to  the  jury.1  It  is  correct  practice,  on  a  trial  involving  a 
number  of  distinct  facts  which  together  would  determine  the  litiga- 
tion, to  submit  special  issues.2 

The  statute  does  not  contemplate  that  in  a  case  where  many  is- 
sues are  involved  one  single  issue  may  be  submitted ;  but  on  the 
contrary,  when  a  special  verdict  is  taken,  it  should  be  on  all  the 
issues  necessary  to  a  proper  judgment  on  the  whole  case.3 

The  issues  submitted  must  be  specific;4  all  the  issues  of  fact  made 
by  the  pleading  must  be  submitted  and  determined  before  final  judg- 
ment upon  a  verdict  can  be  rendered.5 

There  is  no  uniform  practice  determining  the  mode  of  forming 
and  submitting  special  issues  to  a  jury ;  they  may  be  prepared  by 
counsel  and  sanctioned  by  the  court,  formulated  by  the  judge  at  the 
request  of  counsel,  or  on  his  own  motion,  to  meet  the  requirements 
of  the  case  in  the  furtherance  of  justice.6 

The  court  cannot  look  beyond  the  verdict  to  the  evidence  for 
facts  upon  which  to  enter  the  judgment.7 

A  general  charge  is  unnecessary  when  a  cause  is  submitted  on 
special  issues.8 

1  Graves  v.  Campbell,  74  T.  576  (12  S.  W.  Rep.  238). 

2  Douglas  v.  Baker,  79  T.  499  (15  S.  W.  Rep.  801). 

3H.,  E.  &  W.  T.  Ry.  Co.  v.  Snelling,  59  T.  116.  When  the  issues  submitted  to 
a  jury  embrace  only  such  claim  or  claims  as  by  law  are  given  a  lien  upon  prop- 
erty, it  is  not  necessary  to  submit  the  question  of  lien  to  a  jury.  If  more  than 
one  issue  be  submitted  involving  several  different  claims  upon  which  recovery 
is  sought,  and  upon  one  or  more  no  lien  would  attach  by  law,  and  none  exists 
by  undisputed  contract,  if  the  jury  return  a  general  verdict  the  court  cannot 
declare  a  lien  upon  such  verdict;  for  it  is  not  certain  that  the  amount  found  to 
be  due  is  upon  a  claim  entitled  by  law  to  a  lien.  St.  L.,  A.  &  T.  Ry.  Co.  v.  Hen- 
derson, 86  T.  307  (24  S.  W.  Rep.  381),  citing  Day  v.  Cross,  59  T.  608.  The  verdict 
must  contain  facts  sufficient  to  support  a  judgment.  Mussina  v.  Shepherd,  44 
T.  623;  Raines  v.  Calloway,  27  T.  678. 

«  Griffin  v.  Heard,  78  T.  607  (14  S.  W.  Rep.  892). 

8  Cole  v.  Crawford,  69  T.  124  (5  S.  W.  Rep.  646).  In  a  suit  for  the  recovery  of 
the  value  of  specific  articles  converted,  the  rule  which  requires  the  jury  to  find 
the  value  of  each  article  is  intended  for  the  benefit  of  the  defendant,  who  should 
have  the  privilege  of  returning  the  articles,  or  any  of  them,  in  satisfaction  of 
the  judgment  pro  tanto.  A  failure  of  the  jury  to  find  the  value  of  each  article 
is  not  an  error  for  which  a  judgment  can  be  reversed  on  exceptions  by  a  plaintiff. 

6Heflin  v.  Burns,  70  T.  347  (8  S.  W.  Rep.  48);  Wright  v.  Wright,  6  T.  3. 

:Heflin  v.  Burns,  70  T.  347  (8  S.  W.  Rep.  48);  Tripis  v.  Roseborough,  23  S.  W. 
Rep.  231;  Maxwell  v.  First  Nat  Bank,  23  S.  W.  Rep.  342;  Young  v.  Van  Benthuy- 
sen,  30  T.  762. 

8  Cole  v.  Crawford,  69  T.  124  (5  S.  W.  Rep.  646). 


'4-.]  Tin:   \  i  ki'ier. 


?  604.  Must  cover  all  tho  issues;  conclusions  of  lact  on  trial  by  the 
judge. 

The  jury  renders  a  general  or  a  special  verdict  as  may  IK-  dir«- 
by  the  court  at  the  request  of  a  party,  which  must  comprehend  tin* 
whole  issue  or  all  tin-  issues  submitted.  I'pon  a  trial  bv  the  court, 
the  judge  shall,  at  the  request  of  either  of  the  parti,  -s  state  in  writing 
the  conclusions  of  fact  found  by  him.  separately  from  the  conclu- 
sions of  law;  which  conclusions  of  fact  and  law  art-  filed  with  tlie 
clerk  and  constitute  a  part  of  the  record;  in  all  cases  where  a  spe- 
cial verdict  of  the  jury  is  rendered  or  the  conclusions  of  fact  found 
by  the  judge  are  separately  stated,  the  court,  unless  the  same  be 
set  aside  and  new  trial  granted,  renders  judgment  thereon,  and  it 
is  sufficient  for  the  party  excepting  to  the  conclusions  of  law  or 
judgment  of  the  court  to  cause  it  to  be  noted  on  the  record  in  the 
judgment  entry,  that  he  excepts  thereto.  Such  party  may  there- 
upon take  his  appeal  or  writ  of  error  without  a  statement  of 
or  further  exceptions  in  the  transcript,  but  the  transcript  nu 
such  case  contain  the  special  verdict  or  conclusions  of  fact  and  law 
af  ores?  id  and  the  judgment  rendered  thereon.1 

By  rule  27  for  the  court  of  civil  appeals,  a  party  desiring  to  ap- 
peal should,  as  a  predicate  for  specific  assignments  of  error,  re<pi«->i 
the  judge  to  state  in  writing  the  conclusions  of  fact  found  by  him 
separately  from  the  conclusions  of  law.  Failure  to  keep  the  con 
elusions  of  law  and  of  fact  separate  is  not,  as  a  general  rule,  Around 
for  reversal.2  The  judge  is  not  required  to  Hie  conclusions  unle>s 
requested;3  the  motion  must  be  brought  lo  the  attention  of  the 
court,  and  insisted  upon.4  In  absence  of  a  request  the  action  of  the 

1R.S.1333. 

2  Wells  v.  Yarborough,  84  T.  660  (19  S.  W.  Hep.  -«'n.     While  it  is  proper  that 
special  issues  submitted  to  the  jury  ami  their  verdict  th.-r-oM  should  l>eei 
in  the  minutes  of  the  court.  yet  when-  the  transcript  shows  that  the  i-v.ii.- 
made  up  under  direction  <»f  the  court  and  made  a  part  <>f  tin-  r.  .  ..rd.  th> 
gion  to  80  enter  them  upon  tin-  minutes  is  not  -u.  h  irr.--ularit\  a>  will  reverse 
the  case.     Sears  v.  (Jn-en.  1  I".  ('.  ; 

Where  the  question  to  be  determined  is  whether  a  lawful  act  was  d»n. 
iigently,  a  finding  \>y  the  court  a-  a  conclusion  of  law  that  then  was  i 
without  a  finding  as  a  matter  of  fact,  is  iv\,rsil>!e  error.     1  ciu-.ln.lm. 

6  S.  W.  Rep.  55a     The  fact  that  the  ju.l^e  has  included  in   his  tin.  In 
some  conclusions  of  law  dOM  n"t  vitiate  his  whole  statement. 
v.  Rust,  6-1  T.  .Y.29.     The  findings  of  fact  and  of  law  are  snthYieiitly  sejmrat 
the  statement:  "I  therefore  com  hide.  >unn 

mediately  following  a  statement  of  the  fact*.     There  is  no  ilini.-nlty  in  ti- 
the dividing  lim-.     Ward  r,  I  .-  &  \V.  Il'lJ-Wft. 

•Hardinv.   Al.U-y.  ',:   T.   B88;  Thomas  v.  guarles,  W  T.  001;  G.,  C  A  S.  1 
Co.  v.  Fassett.  66  T.  888  (1  a  W.  I, 

*  Sloan  v.  Thompson,  4  (  iv.  A  pp.  11'.'  Rep.  618):  Glass  v.  Wil 

S.  W.  Rep.  e-.'o.  If  the  conclusion-,  of  fa.-t  l.y  the  ,-oiirt  are  not  surtici.-nt; 
and  specific,  the  attention  ,,f  the  ,-oiirt  should  l«-  <  ailed  to  th,-  d.-f.-.-t  1-y  n 
exceptions  or  in  some  other  proper  method;  otherwise  it  will  not  be  OOUM 


570  THE    VERDICT.  [§004. 

trial  court  will  not  be  revised  when  the  statement  of  facts  shows 
evidence  upon  which  the  judgment  is  sustained.1  Where  it  is  evi- 
dent that  no  injury  resulted  from  the  failure  of  the  trial  judge  to 
file  his  conclusions  of  fact  and  of  law  after  request,  such  error  is  no 
ground  for  reversal.2  But  when  such  failure  is  presented  by  a 
proper  bill  of  exceptions,  and  there  is  not  a  full  statement  of  facts 
in  the  record,  and  it  is  not  apparent  that  such  failure  was  without 
injury  to  the  complaining  party,  the  judgment  will  be  reversed.3 

The  request  is  not  complied  with  by  simply  filing  conclusions  of 
law.  The  right  to  have  a  separate  and  distinct  statement  of  the 
facts  found  is  statutory.  The  statutes  requires  a  succinct  and  clear 
statement  of  what  the  judge  thinks  is  the  true  result  of  the  evi- 
dence —  what  it  proves  pertinent  to  the  issue  between  the  parties ; 
then,  upon  this  result,  what  his  opinion  is  as  to  the  law  which  de- 
termines the  rights  of  the  parties.4  The  request  may  be  made  after 
a  motion  for  a  new  trial  is  overruled,  and  must  be  complied  with 
in  a  proper  case,  if  sufficient  time  remains  before  the  end  of  the 
term; 5  all  other  unreached  business  must  be  neglected,  if  necessary, 
in  order  that  the  request  may  be  complied  with  before  the  end  of 
the  term.6 

When  the  statute  is  complied  with  no  further  statement  of  fact? 
is  necessary ;  but  if  there  is  also  a  statement  of  facts,  agreed  to  by 

on  appeal.  G.,  C.  &  S.  F.  Ry.  Co.  v.  Fossett,  66  T.  338  (1  S.  W.  Rep.  259).  The 
omission  of  the  court  to  find  upon  a  material  matter  when  its  attention  was 
not  called  to  such  omission. is  no  ground  for  reversal.  Lanier  v.  Foust,  81  T. 
186  (16  S.  W.  Rep.  994). 

1  Tackaberry  v.  Bank,  85  T.  488  (22  S.  W.  Rep.  151,  299). 

2Umscheid  v.  Scholz,  84  T.  265  (16  S.  W.  Rep.  1065);  Huffman  Implement  Co. 
v.  Templeton,  4  App.  C.  C.,  §  13;  Hill  v.  Newman,  67  T.  265  (3  S.  W.  Rep.  271). 

»Dunlap  v.  Brooks,  3  App.  C.  C.,  §  359;  Callaghan  v.  Grenet,  66  T.  236  (18  S.  W. 
Rep.  507);  Barnett  v.  Abernathy,  2  App.  C.  C.,  §  775;  Shuber  v.  Holcomb,  2  App. 
C.  C.,  §  224:  Hodges  v.  Peacock,  2  App.  C.  C.,  §  824. 

*  Callaghan  v.  Grenet,  66  T.  236  (18  S.  W.  Rep.  507).  See  Hardin  v.  Abbey,  57 
T.  ."is^f  as  to  the  purpose  of  the  statute. 

5  North  v.  Lambert.  3  App.  C.  C.,  §  53. 

h  Shuber  v.  Holcomb,  2  App.  C.  C.,  §  224.  The  request  should  be  made  promptly, 
while  the  matter  is  fresh  in  the  mind  of  the  court,  and  if  made  after  an  unrea- 
sonable delay  a  refusal  to  make  the  statement  will  not  be  revised.  City  Nat 
Bank  v.  Stout,  61  T.  567. 

At  9  P.  M.  of  the  last  day  of  the  term,  and  at  the  close  of  a  protracted  trial, 
the  district  judge  was  asked  to  file  conclusions,  etc.  His  refusal,  for  want  of 
time,  was  held  proper.  Davis  v.  State.  75  T.  420  (12  S.  W.  Rep.  957). 

Failure  to  file  conclusions  within  the  time  from  judgment  and  the  filing  of  a 
motion  for  new  trial  is  no  ground  for  reversal,  although  request  was  made. 
Anderson  v.  Horn,  75  T.  675  (13  S.  W.  Rep.  24). 

The  trial  closed  at  4  P.  M.  of  the  last  day  of  the  term.  On  being  requested  to 
file  conclusions  of  fact  and  law,  the  judge  refused  to  do  so  because  the  other 
business  of  the  term,  which  necessarily  had  to  be  transacted,  would  consume 
his  time  until  the  hour  of  adjournment.  Such  refusal  furnished  no  just  ground 
for  complaint  on  appeal  Morrison  v.  Faulkner,  80  T.  128  (15  S.  W.  Rep.  797). 


'I-.]  Till.     \ 

counsel  ;ni<l  approved  by  tin- court,  it  will  be  considered  in  place  of 

••nclusions  of  the  jud.ire.1      If  tlu-iv  is  no  statement  of  fact- 
concl  :  the  judge  will  be  regarded  a-  .  and  as  corn 

drawn  fmm  the  evidence;-  they  are  entitled  to  the  same  weight  as 
tin-  verdict  of  a  jury.1 

AVliere  the  findings  of  fact  and  conclusions  of  law  are  not  found 
in  the  record,  if,  by  an  application  of  the  law  to  anv  >tate  of  facts 
which  may  legitimately  be  deduced  from  the  evidence  in  the  re 

-ion  of  the  court  can  be  sustained,  the  judgment  will  be  af- 
tirmed:'  if  tin-re  U  any  theory  of  the  facts  supporting  the  judgment, 
it   will   be  assumed   that   the  court   below  adopted  and   pnxv. 
•upon  that  theory;5  if  the  statement  of  facts  supports  the  judgment 
upon  any  combination  of  facts  therein,  errors  uj)on  other  branches 
of  the  case  are  no  grounds  for  reversal.     The  judgment  will  be  sus- 
tained if  it  can  be;6  it  will  be  presumed  on  appeal  that  the  court 
did  lind  the  facts  to  be  such  as  authorized  the  judgment,  if  there 
evidence  warranting  such  finding,  even  though  there  was  other 
i'-uce  that  might  have  sustained  a  different  finding.7 
When,  at  the  request  of  counsel,  conclusions  of  law  and  facts  are 
made  ..at  by  the  trial  judge,  and  neither  the  conclusions  of  law  nor 
-itheiency  of  the  facts  to  sustain  the  judgment  are  excepted  to, 
the  sufficiency  of  the  facts  found  to  sustain  the  legal  conclusions 
will  not  be  considered  on  appeal  unless  except  ions  are  waived.     It 

»Fire  Ins.  Ass'n  v.  Miller,  ',>  App.  C.  C.,  g  335. 

»  Chance  v.  Branch.  M  T.  490:  Madden  v.  Madden,  79  T.  595  (15  &  W.  Rep.  480); 

v  Pac.  Ry.  Co.  v.  Cole.  1  a  W.  Rep.  631,  632:  Wright  v.  Pato,  id.  661. 
»Tex.  &  Pac.  Ry.  Co.  v.  Hoskin-.  •,>  App.  C.  C.,  §  67. 

«McC..y  v.  M.iy.-r.  vM  S.  \V.  Rep.  1015. 

migT.  Marx.  6.J  T.  »-.»'.«:  Johnson  v.  Archibald.  7^  T.  98(14  a  W.  Rejx  8WX 
•Harris  v.  Cattle  Co..  - 

:  1'rideaux  v.  Glasj;.)vs .  v!  (  i\.  Aj.p.  1-J  Jl  S.  \V.  Rep.  276X  In  a  trial  without 
a  jury,  in  absence  of  conclusions  of  fact  atnl  <>f  law.  tlicn-  being  two  grounds  of 
defense,  and  it  not  appearing  upon  which  is>iu>  th«-  decision  was  made,  incom- 
petent evidence  admitted  upon  one  issue,  without  which  a  tiinlinj?  on  that  issue 
«ml'l  not  havf  been  liad,  is  ground  for  reversal  Freeman  v.  Hawkins.  77  T. 
493  (US.  \V.  Rep.  364). 

>n  of  trespass  to  try  titl.  \\.i^  tti.-<l  by  tin-  .u  l-^«-  without  a  jury. 
There  was  testimony  to  the  value  of  the  rents  for  tin-  land  recovered. 

mad«-   no   tin<liiiK  <  n  th.-  suhj.-ct.     <  )n  a[»t»t'al  it  wa>  COIMkUred  that  the 
18  the  result  of  oversight,  and.  tlu-  plaintilTs  not  bavin*  «-alK-.J  the  at- 
t«-ntion  of  tin-  judge  to  tbt>  omission,  it  was  not  ground  for   relief     II 
Whitakri  "'.     Th-  trial  ju.lp  ;   upon 

record  hi-^  tindin^s  of  fact  or  conclusion*  of  la\\.  n«-r  in  M  r  in.li«-at*d 

roun-U  u|H.n  which  he  »>ase«!  his  jud^m-nt  —  th-  plaiutilT  having  made  a 
CMC  requiring  judjfint-nt  in  bi>  favor  unl> ••->  •!•  f«-;it«-d  by  th-    t 

••.dants  —  and  tb»-  juil^iiu-nt  In-low  Ix-in*  f»r  tli.  ap|ical  the 

-liuiony  Mi|'|H>rtin*  th-  jiid«in«-nt 

th-  ap|H-llat-  court  \\iirr-\-r--  an  I  i  •  -maud.      I'  upon  wh*t 

th-  trial  court   act. -1.  or  that  it  woiil-l 

v.  Arin»T:  4<aX 


572  THE   TERDICT.  [§  6(J5. 

exceptions  be  made  and  noted,  the  adverse  party  is  charged  with 
notice  thereof,  and  he  may,  in  his  own  protection  (if  deemed  neces- 
sary), have  a  statement  of  facts  fully  presenting  the  case  made  and 
submitted.  When  no  exceptions  are  taken  to  the  conclusions  of 
law,  or  to  the  judgment,  the  only  inquiry  on  appeal  will  be  as  to 
whether  the  pleadings  authorized  the  judgment  (unless  the  failure 
to  except  was  waived,,  or  not  insisted  on).1 

The  failure  of  the  trial  judge  to  file  conclusions  of  fact  and  of 
law  when  requested  will  not  be  considered  on  appeal  without  a  bill 
of  exceptions  taken  before  the  adjournment  of  the  court.'-2  It  is  a 
sufficient  compliance  with  the  provision  requiring  exceptions  to  the 
conclusions  of  fact  and  law  "  to  be  noted  on  the  record  in  the  judg- 
ment entry,"  that  such  exception  is  noted  in  the  order  overruling  a 
motion  for  a  new  trial.3 

§  605.  Defective  or  erroneous  findings  of  fact. 

Where  the  findings  of  the  court  are  erroneous  in  some  respects, 
but  do  not  atfect  the  merits  of  the  case,  the  errors  may  be  deemed 
clerical  errors  in  making  up  the  conclusions  of  fact.4  Conclusions 
of  fact,  when  not  supported  by  the  evidence,  may  be  corrected  on 
appeal,  with  a  proper  assignment  of  errors,  if  a  full  statement  of  the 
facts  in  evidence  be  incorporated  in  the  record.  Erroneous  conclu- 
sions of  fact  may  also  be  corrected  by  motion  for  new  trial  in  the 
court  below,  based  on  the  want  of  evidence  to  sustain  the  findings.* 
It  is  also  held  that,  if  there  is  a  statement  of  facts  in  the  record,  it 
will  be  considered  in  place  of  the  conclusions  filed  by  the  judge.6 

The  finding  by  the  court  of  immaterial  facts  is  harmless.  The 
question  in  such  case  is  whether  the  material  facts  found  are  sufficient 
to  sustain  the  judgment.7  The  rule  is  to  sustain  the  findings  where 
there  is  in  the  record  evidence  tending  to  support  them.8  An  objec- 
tion to  the  findings  of  fact  that  they  are  against  the  preponderance 
of  the  evidence  is  immaterial.  The  question  on  appeal  is  whether 

1  Continental  Ins.  Co.  v.  Milliken,  64  T.  46.  Exceptions  to  conclusions  of  lavr 
are  not  necessary  where  a  statement  of  facts  and  bills  of  exceptions  are  brought 
up  in  the  record.  Tudor  v.  Hodges,  71  T.  392  (9  S.  W.  Rep.  443). 

-'Landa  v.  Heerman,  85  T.  1  (19  S.  W.  Rep.  885);  Cleveland  v.  Sims.  69  T.  153 
(6  S.  W.  Rep.  634);  Fuller  v.  Follis.  24  S.  W.  Rep.  368;  Scurry  v.  Fromer,  26  S.  W. 
Rep.  461;  Alamo  F.  Ins.  Co.  v.  Shacklett,  26  S.  W.  Rep.  630;  Wilkins  v.  Burns. 
25  S.  W.  Rep.  431;  Hopson  v.  Schoelkopf,  27  S.  W.  Rep.  283;  He*s  v.  Dean.  66  T. 
063  (2  S.  W.  Rep.  727);  Cotulla  v.  Goggan,  77  T.  32  (13  S.  W.  Rep.  742). 

»Biggerstaff  v.  Murphy,  3  Civ.  App.  363  (22  S.  W.  Rep.  768). 

4  Tripis  v.  Weslow,  18  S.  W.  Rep.  684. 

5  Hill  v.  Newman,  67  T.  265  (3  S.  W.  Rep.  271). 
8  Fire  Ins.  Ass'n  v.  Miller,  2  App.  C.  C.,  §  335. 

i  Andrews  v.  Key,  77  T.  35  (13  S.  W.  Rep.  640);  Galveston  Wharf  Co.  v.  G.,  C. 
&  S.  F.  Ry.  Co.,  81  T.  494  (17  S.  W.  Rep.  57). 
&Sanborn  v.  Gunter,  84  T.  273  (17  S.  W.  Rep.  117;  20  S.  W.  Rep.  72). 


"''.]  THE    VKUIUCT. 

ther-  .-nee  to  support  the  timlim:,  not  as  to  preponderance.1 

If  the  judgment  is  correct,  the  failure  of  the  judge  to  state  his  con- 
clu^i'>M>  on  some  of  the  if  r  the  statement  of  erroneous  con- 

clusion-;, is  not  caiiM-  f«»r  r«-v.-i -;tl.-     Krror  in  the  finding  must  be 
shown  by  the  record.1    If  a  party  desires  a  fuller  or  corrected  find- 
:ie  court's  attention  must  be  call.-d  to  the  matter;4  the  request 
i>e  made  at  any  time  during  the  term,^  and  exceptions  should 

1  in  case  of  refusal." 

Failure  to  find  a  particular  issue  claimed  by  counsel  to  be  mate- 
rial :  ror  unless,  from  an  inspection  of  tin-  !•«••••  »rd,  it  should 
appear  material  that  a  finding  should  have  been  had  on  it.7  Failure 
to  tind  a  material  fact  necessary  to  support  the  c"iiclu>ions  of  la\v 
is  not  ground  for  reversal  when  the  statement  of  facts  shows  satis- 
factorily the  proof  of  such  fact.8  A  failure  to  tind  upon  a  matter 
as  to  which  there  is  no  conflict  in  the  evidence  is  not  error.'  That 
an  instrument  involved  in  the  litigation  is  erroneously  d.  M-ril*ed  is 
immaterial,  where  there  is  no  doubt  as  to  the  instrument  to  which 
the  findings  refer,10  or  if  the  instrument  is  set  out  in  the  findings." 

?  6O6.  Form  of  verdict. 

special  form  of  verdict  is  required,  and  where  there  has  been 
a  substantial  compliance  with  the.  requirements  of  the  law  in  ren- 
dering a  verdict,  the  judgment  will  not  be  arrested  or  reversed  for 
mere  want  of  form  therein.1-  The  form  of  a  verdict  is  immaterial.11 

i  Wells  v.  Yarborough.  84  T.  660  (19  S.  W.  Rep.  865). 

gOO  v.  Mo.  Pac.  Ry.  Co.,  3  App.  C.  C..  S  5:  Ureen  v.  Cm- 
Rep.  22M).    If  tin-  finding  of  a  fact  is  predicated  upon  the  mere  opinion  of  a  wit- 
ness, and  the  party  against  whom  the  fart  is  found  fails  to  crossexamine  the 
witness  to  ascertain  on  what  basis  of  facts  the  opinion  is^iv.-n.  it  will,  on  appeal, 
be  deemed  conclusive.    Burrow  v.  /a pp.  <>'.»  T.  474  i«5  S.  \\    I 

established  l>y  tin-  evidence  be  omitted,  which  in  tin-  opinion  ..f  an  ap|*-llant  is 
material.  !)••  -li.-uld  make  a  request  for  additional  finding.  |H.intin«  out  in  what 
r  tht-  tindin-s  of  the  judge  are  defective.    Andrews  \  T.  35  (18  S. 

W.  1. 

'Shipniaii  v.  Mit'-hcll.  01  T.  171. 

<  Ward  v.  League,  -J  t  s.  W.  Rep.  986;  Hensley  v.  Lewis,  82  T.  595  (17  a  W.  Rep. 
Fit/.himh  v.  FraiH-o-Tex.  L.  Co.,  81  T.  306  (16  &  W.  Rep.  lo: 

.liollll.  sS.   \V.    : 

•  Fitzliuwh  v.  1  ranco-Tex.  L.  <  la,  -1  T.  806  (16  a  W.  Rep.  1078):  Gavin  v.  LA 
Salle  Co.,  1  Civ.  App.  U7    Jl  s.  \V.  I:,  p.  i-.-j ,;  Cason  v.  Connor,  83  T.  20  (1»  - 
Rep.  068). 

Kxle  v.  Low. -ry.  7' i  T.  150  (8  a  W.  Rep.  78). 

•San  Antoni,-  \\  .,t-  .  u  <  „  U  «  • ..  v.  M.unv  .' S.  W.  K,-p.  106). 

1  Ikard  v.  Thomp-on.  ^1  T.  •>.-,,  Hi  S.  \V.  Ke[V  1019). 
»•  James  v.  Tnrn.-r.  7"  T.  -J  II  'I  S.  \V.  I 
>'  Hart  v.  Hluin.  7(5  T.  li:»  .i:j  S.  \V.  Kep.  181). 
»-'  R.  a  1834. 
U  ells  v.  Barnett,  7  T.  584;  Burton  v.  Bondies,  2  T.  204 


574;  THE    VERDICT,  [§§  607,  608. 

§  607.  Degree  of  certainty  required. 

A  verdict  is  sufficiently  certain  it'  it  can  be  rendered  certain  by 
reference  to  the  record.1  The  form  is  immaterial,  so  that  it  be  in- 
telligible, sensible,  and  find  substantially  the  material  issues.-  If  it 
is  so  certain  that  the  court  can  give  judgment  upon  it,  it  is  suffi- 
cient; and  this  is  the  proper  test  of  its  sufficiency.  Technical  ob- 
jections as  to  form  are  disregarded.3  In  considering  the  sufficiency 
of  a  verdict  the  first  object  is  to  ascertain  what  the  jury  intended 
to  find,  and  this  must  be  done  by  construing  the  verdict  liberally  r 
with  the  sole  view  of  ascertaining  the  meaning  of  the  jury,  and  not 
under  the  technical  rules  that  are  applicable  to  pleadings.  If  a  ver- 
dict is  neither  certain  in  itself,  nor  finds  facts  from  which  certainty 
can  be  attained,  it  ought  to  be  set  aside ; 4  reference  cannot  be  made 
to  the  evidence  in  order  to  sustain  the  judgment  in  such  a  case.5 

Though  a  verdict  may  be  informal,  if  it  be  responsive  to  all  the 
issues  and  its  meaning  clear,  it  will  be  held  good ;  but  if  its  con- 
struction be  doubtful,  no  judgment  can  bo  rendered  on  it.6  A  ver- 
dict which  is  not  responsive  to  the  instructions  of  the  court  is 
sufficient  if  it  be  responsive  to  the  issues  presented  by  the  pleadings 
so  as  to  enable  the  court  to  adjudicate  the  rights  of  the  parties.7 
Though  a  verdict  may  not  be  in  its  form  strictly  in  accordance  with 
the  court's  charge,  yet  if  its  meaning  is  manifest  by  reference  ta 
the  entire  record  it  will  not  be  set  aside  for  informality.8 

§  608.  Must  respond  to  the  issue. 

The  jury  must  find  the  very  point  in  issue ;  and  the  finding  of 
matter  not  in  issue  is  invalid  and  will  not  support  a  judgment.9 
The  province  of  a  verdict  is  to  declare  the  facts  upon  which  the  judg- 

1  Barton  v.  Anderson,  1  T.  93;  Smith  v.  Johnson,  8  T.  418;  Avery  v.  Avery,  12 
T.  54;  Pearce  v.  Bell,  21  T.  688. 

2  Wells  v.  Barnett,  7  T.  584. 

3  Burton  v.  Bondies,  2  T.  204. 

4  Mays  v.  Lewis,  4  T.  38;  Smith  v.  Tucker.  25  T.  591.  ' 

5Clendenning  v.  Mathews,  1  App.  C.  C.,  §  907;  Thompson  v.  Albright,  4  App. 
C.  C.,  g  25;  Smith  v.  Roberts,  4  App.  C.  C.,  §  49.  Where  facts  are  found  from 
which  the  amount  of  the  judgment,  including  interest,  may  be  calculated,  it  is 
sufficient.  Griffin  v.  Chad  wick,  44  T.  406;  Newcomb  v.  Walton,  41  T.  318;  Se- 
crest  v.  Jones,  30  T.  596;  Irvin  v.  Garner,  50  T.  48:  Parker  v.  Leman,  10  T.  116; 
Moke  v.  Fellman.  17  T.  367;  Darden  v.  Matthews,  22  T.  320;  B.  C.  Evans  Co.  v. 
Reeves,  6  Civ.  App.  254  (26  S.  W.  Rep.  219). 

«  Van  Valkenberg  v.  Ruby.  68  T.  139  (3  S.  W.  Rep.  746). 

^Harkey  v.  Cain,  69  T.  146  (6  S.  W.  Rep.  637). 

«G.,  C.  &  S.  F.  Ry.  Co.  v.  James,  73  T.  12  (10  S.  W.  Rep.  744).  In  a  suit  to  re- 
cover the  amount  due  on  an  insurance  policy,  a  verdict  "We,  the  jury,  find  for 
the  plaintiff  the  amount  alleged  in  the  petition,  and  interest  thereon,"  will  sup- 
port a  judgment  for  plaintiff.  Alamo  Fire  Ins.  Co.  v.  Lancaster,  7  Civ.  App.  677 
(28  S.  W.  Rep.  126). 

9  Hardy  v.  De  Leon,  5  T.  211;  Kesler  v.  Zimmerschitte,  1  T.  50;  Phillips  v.  Hill, 
3  T.  397;  Pfeuffer  v.  Wilderman,  1  App.  C.  C.,  §  1172. 


§  609.]  II  IK    Vl.KMCT. 

Bent  i>  to  be  predicated.     Its,,!,  >  announce  to  the  c 

the  judgment  ..f  the  jury  as  to  how  far  the  facts  establish.-,!  h\  tin- 
evidence  conform  to  those  which  are  alleged  and  put  in  ksue  bv 
the  pleadings.      As  the  farts  thu>  .1.-,  iaiv.l   constitute   tin-   ba- 
the judgment,  which  is  hut  tin-  le^al  OOD»  of  tin-  farts  thus 

found,  it   follows  that   tlv  ••:th«-r  alliim   or 

such  of  the  disputed  :  '.ill,  in  connection  with  those  adin 

if  any,  support  a  leiral  judgment.1     If  the  verdict  is  n> 
the  jury  must  be  sent  hack  for  further  deliberation.* 

$  6O9.  Must  comprehend  the  whole  issue. 

The  verdict,  whether  general    or   spe.-ial,   must   comprehend  the 
whole  issue  or  all  the   issues  submitted  to  the  jurv.3     The  « 
should  not   receive  a  verdict  which  fails  to  find  material  issues  sub- 
mitted in   the  charire.*     The  case  must  be  disposed  of  as  to  all  of 
the  defendants."1      I!ut  it  is  said  to   be  no  objection   to  a  judgment 
that  the  jury  did  not  find  upon  all  the  issues  submitted,  pro 
they  found  upon  all  the  :  ^ntial  to  a  judgment  :*  and  \\ 

the  verdict  is  deficient  in  not  expressly  finding  one  of  the  issu- 
the  case,  it  may  be  aided  by  the  pleadings  so  as  to  supply  by  am.-r  .1 
raent  that  which  is  not  expressed  in  it,  but  which  necessarily  tlo\\s 
from  that  which  is  expressed,  viewed  in  connection  with  the  plead 
ings.7 

1  Clendenning  v.  Mathews,  1  App.  C.  C.,  g  905:  May  v.  Taylor.  22  T.  849;  I>;i 
v.  Mathews.  j.1  I.  :;jt;  Barnett  v.  Caruth.22  T.  17&   On  a  special  issue  - 
as  to  a  party's  place  of  business,  as  also  the  character  of  the  »•  -  up.ition  he  was 
there  pursuing,  the  verdict  was.  ••  \\Y.  tin-  jury,  find  for  the  defendant,  that  hi» 
place  of  residence  was  at  Wichita  Falls."    Tin-  verdict  did  not  res|»ond  to  the 
issue  submitted.   Tillman  v.  Brown,  64  T.  181.    \Vh»-n-  int«-r 
claimed  priority  ov»-r  plaintilF'.s  attachment  on  tlu-  ^rouivl  «f  fniu.l  in  plur 
notes,  a  ver-lict  for  plaintiff  for  the  full  amount  of  his  n.-t.-s  was  h.-ld  sufficient 
as  to  the  disposition  of  the  issues  raised  by  int.  rv.-n.-rs.     Pit  kins  T.  Johnson,  2 
s.  \V.  Rep.  4:>:t. 

The  finding  of  the  jury  upon  a  special  issue  sulimitt<-<l  to  them  may  be  suffi- 
ciently responsive  without  following  the  exa.-t  laiikrua^>-  in  which  the  issue  te 
submitted.  Rol.inson  v.  Moon-,  1  (.'iv.  App.  !«.  994K  Where  the 

purchaser  of  a  machitu-  sues  the  st-ll.-r  to  n-cov.-r  tin-  purch.is.-im>in-y.  alleging 
that  he  relin«|ui^lu-s  all  claim   to.  and  ti-n-l.-r-   l-a.k.  th.-   ma.  liine,  a  ver-l 
favor  of  plaintiff  for  a  part  of  the  pun-has.-  inc.  n.y  ..nly.  and  th 
machine,  is  not  resp<  :h.-  issui->  mad.  l.\  tli.   i 

IL  Mac!.  in-  C...  v.  Hai,.,.,  k.  4  Civ.  App.  ::".'    .'  .  ^    W.  i 

A  verdict  which  omitt-'d  action  UJMUI  on.-  <ir  nn-n-  it.-ms  pleaded  and  proved 
and  submitted  to  tin-  jury  is  not  responsive  t<>  the  tames  8ul>iniit<-d.  and  should 
therefore  be  st-t  aside.  Mar^ilis  v.  1'atton.  -  S  v  vv.  1;.  p.  lUTO). 


»R  a  1833;  Michon  v.  Ayalla,  84  T.  6S5  (19  &  W.  Rep.  878). 
«  Kerr  v.  Hutcliins  46  T.  885. 
•Levy  v.  Mel»,,wi.ll.4.-i  i 
•O'Brien  v.  Hill.  urn.  •-.>_>  T.*«l«. 
7  Pearce  v.  Bell,  21  T.  687. 


5Y6  THE    VERDICT.  [§§  610-612. 

A  special  verdict  is  defective  and  cannot  form  the  basis  for  a  valid 
judgment,  unless  it  finds  all  the  material  facts  put  in  issue  by  the 
pleadings;  and  this  though  the  evidence  may  clearly  establish  the 
existence  of  the  facts  not  found.  It  is  the  right  of  a  litigant  to 
have  the  jury  pass  on  all  facts  controverted  by  the  pleading.  When 
they  have  failed  to  do  this,  the  court  cannot  render  a  judgment 
without  infringing  a  right  guarantied  to  the  citizen  by  the  constitu- 
tion and  laws.  The  verdict  and  judgment  should  be  the  end  and 
not  the  basis  for  the  continuance  of  the  controversy.  The  verdict 
should  therefore  be  rendered  on  the  issues  made  by  the  pleading  in 
apt  language,  which  cannot  admit  of  a  mistake.1 

8  610.  Finding  as  to  damages. 

The  proper  practice  where  both  actual  and  exemplary  damages 
are  claimed  is  to  instruct  the  jury  to  find  separate  verdicts,  one  as 
to  the  actual  and  one  as  to  the  exemplary  damages.  But  a  failure 
to  do  this,  when  not  excepted  to  nor  the  proper  instruction  asked, 
would  not,  of  itself,  be  sufficient  to  reverse  the  judgment.2  If  no 
instruction  is  given,  a  verdict  for  a  gross  sum  will  support  a  judg- 
ment.3 

£  611.  Value  of  personal  property,  how  assessed. 

Where  the  suit  is  for  the  recovery  of  personal  property,  suscep- 
tible of  division  and  distinct  valuation,  the  jury  should  assess  the 
separate  value  of  each  article.4  But  where  a  single  piece  of  prop- 
erty is  sued  for,  in  specie,  and  not  in  the  alternative  for  damages, 
and  is  sequestered,  and  remains  in  the  hands  of  the  sheriif  unre- 
plevied,  it  is  sufficient  to  find  such  piece  of  property  for  the  plaint- 
iff, without  assessing  its  value.5  When  damages  for  detention  are 
also  recovered,  they  may  be  assessed  in  the  aggregate. 

§  612.  Compromise  verdict. 

There  is  no  objection  to  the  assessment  of  the  amount  of  a  verdict 
by  each  juror  setting  down  the  amount  which  he  believes  to  be 

1  Moore  v.  Moore,  67  T.  293  (3  S.  W.  Rep.  284).    Where  the  action  seeks  a  money 
judgment  and  the  foreclosure  of  a  mortgage,  a  verdict  for  a  part  of  the  claim, 
with  no  finding  as  to  the  mortgage,  is  not  a  sufficient  basis  for  a  decree  of  fore- 
closure.   Morgan  v.  Richardson,  25  S.  W.  Rep-.  171;  Smith  v.  Chenault,  35  T.  78. 
In  an  action  of  trespass  to  try  title  the  verdict  found  for  the  defendant,  and 
fixed  sufficiently  the  extent  of  the  land  so  found.    It  appearing  that  the  finding 
included  all  claimed  by  the  plaintiffs,  the  verdict  was  sufficient;  finding  beyond 
was  surplusage.    Musselman  v.  Strohl,  83  T.  473  (18  S.  W.  Rep.  857).    See  Dodd 
v.  Gaines,  82  T.  429  (18  S.  W.  Rep.  618),  and  cases  cited. 

2  Tex.  &  Pac.  Ry.  Co.  v.  Casey,  52  T.  112;  Shook  v.  Peters,  59  T.  393. 

3  Heiligman  v.  Rose,  81  T.  222  (16  S.  W.  Rep.  931).    f. 

4Blakely  v.  Duncan,  4  T.  184;  Rowlett  v.  Fulton^E  T.  458;  Pridgen  v.  Strick- 
land, 8  T.  427. 
5  Avery  v.  A  very,  12  T.  54 


§  612.]  THE   VERDICT. 

right,  adding  the  whole  together  and  dividing  by  the  numb- 
jurors,  if  all  the  jurors  assent  to  the  amount  after  it  has  been  t!n> 
ascertained.1   Where  there  is  testimony  under  which  the  jury  < 
have  found  a  larger  or  a  less  verdict,  that  the  verdict  was  a  com- 
promise is  not  a  ground  for  reversal.1    In  actions  for  damages  for 
a  tort,  a  compromise  verdict  will  stand  where  the  evidence  is  con- 
flicting.1 

i  Handley  T.  Leigh,  8  T.  129. 
»  Maverick  v.  Maury,  79  T.  435  (15  a  W.  Rep.  688)1 
1  Owens  v.  Railway  Ckx,  67  T.  879  (4  a  W.  Rep.  593). 
37 


CHAPTER  XXXVIII. 


NONSUIT. 


§  618.  Right  of  plaintiff  to  take  a  non- 
suit 
614  May  be  taken,  when. 


§615.  May  be  set  aside. 
616.  Effect  of  nonsuit  where  cause  is 
reinstated. 


55  613.  Right  of  plaintiff  to  take  a  nonsuit. 

The  court  cannot  compel  a  plaintiff  to  take  a  nonsuit.1  It  is  a 
privilege  that  cannot  be  denied,  except  as  modified  by  the  statute. 
If  the  plaintiff  believes  that  his  evidence  is  not  sufficient  to  main- 
tain his  case,  or  if  for  any  reason  he  does  not  care  to  risk  a  verdict, 
he  may  become  nonsuit  in  order  that  he  may  have  an  opportunity 
of  bringing  it  on  again,  either  in  another  shape,  or  when  better 
prepared  with  evidence.2  The  judgment  of  nonsuit  is  not  a  bar  to 
another  action;3  but  if  a  verdict  be  once  given,  followed  by  judg- 
ment thereon,  the  party  is  forever  barred  from  suing  the  defendant 
upon  the  same  ground  of  complaint.4 

Plaintiff  may  take  a  nonsuit  when  the  evidence  on  which  he  re- 
lies is  ruled  out;5  or  after  the  court  has  instructed  the  jury  to  return 
a  verdict  for  the  defendant.6 

§  614.  May  be  taken,  when. 

At  any  time  before  the  jury  have  retired  the  plaintiff  may  take 
a  nonsuit,  but  he  shall  not  thereby  prejudice  the  right  of  the  ad- 
verse party  to  be  heard  on  his  claim  for  affirmative  relief;  when 
the  case  is  tried  by  the  judge  such  nonsuit  may  be  taken  at  any 
time  before  the  decision  is  announced.7  A  discontinuance  is  not 
permitted  to  the  prejudice  of  a  defendant  filing  a  counter-claim.8 

!McGill  v.  Delaplain,  Dallam,  493;  Guest  v.  Guest,  id.  394;  Huston  v.  Berry, 
3  T.  235. 

^  Thomas  v.  Hill,  3  T.  270;  Austin  v.  Townes,  10  T.  24;  Guest  v.  Guest,  Dallam, 
394;  Frois  v.  Mayfield,  31  T.  366;  Peck  v.  McKellar.  33  T.  234. 

3  Foster  v.  Wells,  4  T.  101;  Pillow  v.  Eliot,  25  T.  Sup.  322. 

4  Foster  v.  Wells,  4  T.  101 ;  Weathered  v.  Mays,  4  T.  387;  Lynch  v.  Baxter,  4  T. 
431;  Grassmeyer  v.  Beeson,  18  T.  753;  Mills  v.  Alexander,  21  T.  154;  Thouvenin 
v.  Rodrigues,  24  T.  463;  Giddings  v.  Steele,  28  T.  732.    It  is  held  that  the  claim- 
ant in  a  suit  to  try  the  right  to  property  taken  on  execution  cannot  take  a  non- 
suit as  a  matter  of  right.     McDuffie  v.  Greenway,  24  T.  6. '5. 

» Cotton  v.  Lyter,  81  T.  10  (16  S.  W.  Rep.  553);  Childs  v.  Mays,  73  T.  76  (11  S.  W. 
Rep.  154):  Block  v.  Weiller,  61  T.  692. 

'Lockett  v.  Ft.  W.  &  R.  G.  Ry.  Co.,  78  T.  211  (14  S.  W.  Rep.  564). 
•R.  S.  1301. 
8  R.  S.  1260. 


•"'.] 

The  right  of  a  plaintiff  to  take  a  nonsuit  is  not  defeated  by  the 

;dant  asking  affirmative  relief,  but  he  takes  his  nonsuit  MI 
t«»  the  right  of  the  defendant  to  be  heard  on  the  claim  set  up  by 
him.1    The  statute,  it  seems,  applies  in  actions  of  trespass  t" 
title.1 

The  right  of  the  plaintiff  to  take  a  nonsuit  upon  his  own  cause  of 
action  was  considered  of  sufficient  ini|>ortance  by  the  legislature  to 
be  given  express  recognition.  Owing  to  unexpected  contingencies 
that  may  occur  during  a  trial  it  is  a  privilege  which  it  rnav  !»••»•.. mf 

ssary  for  the  most  careful  and  diligent  litigant  to  exei 
it  is  imjxn-tant  that  the  substance  and  not  the  shadow  alone  of  the 
ri«rht  shall  be  preserved.     It  will  not  unfrequently  hapjx'n  that  the 
party  who  takes  the  nonsuit  should  be  relieved  from  its  effect 
a  timely  application  upon  such  terms  as  the  court  may  in  r 
tion  impose  and  as  may  be  proper  to  promote  the  ends  of  justice.    It 
is  only  when  a  defendant  bv  a  counter  claim  seeks  some  affirm 

» 

relief  that  the  right  of  the  plaintiff  to  discontinue  the  enti 
forbidden.     Obviously  the  defendant   only  seeks  such  affirm 
relief  when  by  his  own  pleading  he  prays  for  some  specific  r« 

•hat  cannot  be  given  to  him  under  pleading  that  are  >trictly 
defensive  and  that  serve  only  to  compel  the  plaintiff  to  | 
cause  of  action.     The  defendant  must  not  only  pray  for  affirma- 
tive relief,  but  he  must  state  facts  showing  that  he  has  a 
action.     If  he  is  doing  nothing  more    than  resisting  the  plaintiff's 

very,  the  statutes  recognize  the  right  of  the  plaintiff,  for  his 
own  protection,  to  dismiss  the  suit.1 

The  allowance  of  a  nonsuit  after  the  court  has  announce* i 
ision  is  not  reversible  error  where  no  injury  result 

-615.  Nonsuit  may  be  set  aside. 

Where  the  plaintiff  has  been  surprised  by  the  decision  of  the  court 
in  ruling  out  his  testimony,  and  in  consequence  taken  a  nonsuit,  he 

1  Peck  v.  McKellar,  83  T.  234. 

2  Block  v.  Weiller,  61  T.  692:  Hoodlew  v.  Winter,  80  T.  688, 641  (16  a  W.  Rep. 

French  v.  Grosbeck,  JT  S.  \V.  Rep.  4a 

Huodlen  v.  Winter,  80  T.  688  (16  a  W.  Rep.  427V    A  discontinuance  a- 
of  the  plaintiffs  is,  in  effect,  a  nonsuit  taken  by  them,  and  a  judgm< 
suit  is  the  proper  entry    K.-lly  v.  K.-lly.  -.':;  T.  437);  and  a  dismissal  of  th«  rait 

.lintitf.  whether  t.-, -iini, -ally  a  nonsuit  or  a  discontinuance,  cannot 
the  ri^ht  of  an  intervener  to  be  heard  on  his  claim  for  nfflrmnt 
petition  in  intervention  shows  Mich  interest  in  the  «ul>j«ct  matter  of  the  : 
tion  between  the  parties  as  woul-1  entitle  the  in- 

nt  action  uk'iiinst  tin-  plaintiffs  or  those  represent 
the  relief  in  whole  or  in  ]  t.  th«-n  tl.. 

iismissalby  th«-  plaintiff-  ,-tioti.     If  no  Mich  : 

M  in  th»-  int.-f\.-iiti..!i.  t!  •'>  the  diimiHll 

of  Hi.  ;  the  .li-iui-sil  l-y  til-.-  plaintiffs    States  U& 

•erson  v.  McK  &  W.  Rep.  1005. 


5SO  NONSUIT.  [§  616. 

may  afterwards  move  to  set  it  aside,  and  reinstate  the  cause  on  the 
docket;  and  the  judgment  of  the  court  overruling  the  motion  may 
be  revised  on  error  or  appeal.1 

Where  a  case  was  reinstated  on  motion  made  three  days  after  the 
judgment  was  rendered,  and  objection  was  made  to  the  action  of  the 
court  because  the  motion  was  not  made  within  the  time  required  by 
statute,2  it  was  held  that  the  matter  was  in  the  discretion  of  the 
court,  and  that  it  did  not  appear  that  the  discretion  was  abused.3 

Where  the  petition  showed  a  cause  of  action,  and  there  was  tes- 
timony tending  to  prove  the  allegations  and  none  contradicting,  and 
the  court  instructed  the  jury  to  find  for  the  defendant,  the  plaintiff 
was  under  no  obligation  to  permit  a  verdict  to  go  against  him,  but 
might  take  a  nonsuit ;  and  it  was  error  to  refuse  a  motion  to  set 
aside  such  nonsuit  when  taken.4 

It  is  not  a  matter  of  course  to  set  aside  the  judgment,  but  rather 
an  exercise  of  the  equitable  discretion  of  the  court  upon  the  pres- 
entation of  sufficient  cause,  and  then  upon  such  conditions  as  shall 
provide  adequate  penalties  and  protection  for  all  parties.  What- 
ever conditions  are  imposed  in  a  reasonable  exercise  of  judicial  dis- 
cretion in  setting  aside  the  judgment  of  nonsuit  must  be  submitted 
to;  but  when  these  conditions  are  complied  with,  immunity  against 
the  judgment  exists  for  all  purposes.  There  will  arise  some  cases 
in  which  such  judgments  ought  to  be  unconditionally  vacated,  others 
in  which  they  ought  to  be  left  in  force.  The  larger  class  of  cases 
no 'doubt  will  be  those  in  which  they  should  be  set  aside  upon  such 
adequate  terms  as  will  meet  the  emergencies  of  the  particular  case.5 

§  616.  Effect  of  nonsuit  where  cause  is  reinstated. 
A  nonsuit  and  reinstatement  leaves  the  case  as  it  was  at  the  in- 
stitution of  the  suit  as  regards  the  question  of  limitations.6    So 

1  Houston  v.  Berry,  3  T.  235;  Easterling  v.  Ely  the,  7  T.  210;  Austin  v.  Townes, 
10  T.  24;  Osborne  v.  Scott,  13  T.  59.  Where  a  plaintiff  was  forced  to  take  a  non- 
suit by  the  refusal  of  a  continuance  to  which  he  was  entitled  as  a  matter  of 
right,  it  was  error  for  the  court  to  overrule  his  motion  to  set  aside  the  nonsuit 
and  reinstate  the  cause.  Peck  v.  Moody,  33  T.  84. 

*  R.  S.  1373. 

8  George  v.  Taylor,  55  T.  97,  citing  Goss  v.  McLaren.  17  T.  107.  After  argument 
begun  the  plaintiff  discovered  that  some  of  his  evidence  was  not  before  the  court, 
and  took  a  nonsuit,  and  the  case  proceeded  to  judgment  as  between  the  defend- 
ants. The  ground  for  the  motion  to  reinstate  was  that  plaintiff  resided  in  New 
York,  and  was  not  present  at  the  trial,  and  that  his  attorney,  when  he  announced 
ready  for  trial,  supposed  certain  overdue  coupons  were  attached  to  the  bond  sued 
on,  or  were  in  the  hands  of  one  of  the  defendants,  and  did  not  discover  his  mis- 
take until  after  announcement;  no  injury  being  shown  to  result  to  the  plaintiff 
it  was  held  that  the  refusal  of  the  motion  was  not  an  abuse  of  judicial  discre- 
tion. Briggs  v.  Rush,  1  Civ.  App.  19  (20  S.  W.  Rep.  771). 

<Lockett  v.  Railway  Co.,  78  T.  211  (14  S.  W.  Rep.  564). 

5  Chi  Ids  v.  Mays,  73  T.  76  (11  S.  W.  Rep.  154). 

« Cotton  v.  Lyter,  81  T.  10  (16  S.  W.  Rep.  553).    There  are  other  cases  which 


§  610.]  -UIT.  581 

where  a  nonsuit  was  taken  because  the  note  sued  on  was  not  prop- 
erly described,  and  four  years  after  the  maturity  of  tin*  n«>t*«  th«» 
suit  was  reinstated,  it  was  held  that  the  claim  was  not  affected  by 
the  statute.1  And  where  a  case  was  dismissed  for  want  of  prosecu- 
tion, and  was  reinstated  on  a  motion  made  at  the  next  term,  tit-- 
court, referring  to  the  provisions  of  the  statute  for  the  setting  aside 
of  judgments,  said :  ••  Usually  such  motions  are  made  during  th« 
term  at  which  judgments  were  rendered,  but  not  always.  Ky  the 
provisions  of  the  statute3  it  is  not  a  matter  of  right  that  jud^n 
will  be  set  aside  on  motion.  It  is  discretionary  with  the  court,  but 
that  discretion  is  not  an  arbitrary  or  personal  om 

announce  a  contrary  doctrine.    Sun  Mut  Ina  Co.  v.  Levy,  8  App.  G,  C,  §  498; 
Beissner  v.  Tex  Exp.  Co.,  1  App.  C.  C.,  §  806. 

1  Childs  v.  Mays,  73  T.  76  (11  S.  W.  Rep.  154). 

2  RS.  137.0. 

'Miller  v.  Earle,  4  App.  a  C.,  §  222. 


CHAPTER  XXXIX. 


JUDGMENTS. 


617.  Of  the  entry  of  judgment. 

618.  Names  of  parties  must  be  stated. 

619.  Certainty  required  in  judgment 

entry. 

620.  Must  conform  to  the  case  made. 

621.  Must  be  based  on  the  verdict. 

622.  Of  the  relief  granted. 

623.  When  judgment  rendered  in  cer- 

tain cases. 

624.  Recitals  in  judgments. 

625.  Entry  nunc  pro  tune. 

626.  Judgment  by  consent. 

627.  Excess  in  judgment. 

628.  May  include  interest. 

629.  May  be  for  or  against  one  or 

more  parties. 

630.  Description  of  land. 

631.  Only  one  final  judgment. 


§  632.  May  pass  title  to  property. 

633.  Enforcement  of  judgment;  judg- 

ment for  delivery  of  personal 
property. 

634.  Foreclosure  of  liens. 

635.  Writ  of  possession  awarded. 

636.  Judgments     on     appeal     from 

county  or  justices'  courts. 

637.  Judgments    against    executors, 

etc. 

638.  Final  judgments. 

639.  Interlocutory  judgments. 

640.  Presumptions    in    aid  of  judg- 

ments. 

641.  Validity  of  judgments;   collat- 

eral attack. 

642.  Orders  of  court 


§  617.  Of  the  entry  of  judgment. 

When  the  verdict  of  the  jury  has  been  properly  returned  into 
court  and  received,  or  the  award  of  arbitrators  has  been  filed,  the 
judgment  of  the  court  follows  as  a  legal  conclusion,  and  is  entered 
by  the  clerk  in  the  minutes  of  the  court  under  the  directions  of  the 
judge.1  It  is  the  duty  of  counsel  of  the  party  for  whom  a  judg- 
ment is  to  be  rendered  to  prepare  the  form  of  the  judgment  and 
submit  it  to  the  court.2 

The  entry  of  judgment  upon  a  valid  verdict  involves  no  judicial 
or  discretionary  powers,  but  is  simply  a  ministerial  act;  and  to  en- 
force its  performance  the  writ  of  mandamus  will  issue  in  a  proper 
case.3  The  verdict  need  not  be  copied  into  the  judgment;  and  if 
it  be  copied,  the  name  of  the  foreman  of  the  jury  need  not  be  in- 

1  R.  S.  1087, 1146. 

2  Rule  48. 

3  Lloyd  v.  Brinck,  35  T.  1;  Const.,  art.  V,  §  3;  R.  S.  949.    When  a  jury  ren- 
ders a  verdict  in  proper  form,  and  responsive  to  the  issues  presented  by  the 
pleadings  and  submitted  to  them  by  the  court,  no  discretionary  power  is  vested 
in  the  court  to  set  such  verdict  aside  upon  its  own  motion,  notwithstanding  it 
may  be  against  the  weight  of  the  evidence  or  in  disregard  of  the  instructions. 
Lloyd  v.  Brinck,  33  T.  1. 


•  .it  IM.MKXTS.  583 

eluded.1     Tho  word  "  judgment "  includes  all  that  is  meant  by  the 
words  "on  I'M.  ,u.  decree  or  judgment."  - 

$  618.  Names  of  parties  must  bo  stated. 

The  entry  of  judgment  must  contain  the  full  names  of  the  parties, 
as  stated  in  the  pleadings,  for  and  against  whom  the  judgment  is 
rendered.1  The  courts  do  not  seem  inclined  to  enforce  this  ml.-. 
In  sonic  ca>rs  tin-  failure  to  state  the  names  of  the  parties  is  held 
to  be  an  irregularity,  l»ut  in  accordance  with  the  general  pi 
and  again  such  a  judgment  is  held  to  be  objectionable,  but 

•  I  simply  that  an  assignment  of  the  error  is  necessary,  at, 
further  notice  is  taken  of  it.*  When  the  entry,  in  connection  with 
the  record,  leaves  no  doubt  as  to  the  parties  in  whose  favor  the 
judgment  was  rendered,  the  judgment  is  not  defective  because  it 
omits  the  names  of  the  parties.6  So  it  seems  that  it  is  sutlicient  if 
the  full  names  of  the  parties  were  set  out  in  the  petition.7 

1  McKinnon  v.  Reliance  L.  Co.,  63  T.  30. 
-  Ilall>ert  v.  Alford,  16  a  W.  Rep.  814. 
«  Rule  65. 
«  Smith  v.  Chenault.  48  T.  455. 

5  Johnson  v.  Richardson,  52  T.  481. 

6  Little  v.  Kirdwell.  •*:  T.  688. 

7  Hays  v.  Ya  rhorough,  21  T.  487.   Though  a  judgment  should  set  forth  the  full 
names  of  the  patties  for  and  against  whom  it  is  rendered,  a  failure  in  this  re- 
spect will  not  be  cause  for  reversal,  in  the  absence  of  an  assignment  of 
pointing  out  the  defect.    Johnson  v.  Richardson,  52  T.  481.    A  judgment  is  not 
void  because  it  fails  to  give  the  Christian  name  of  the  defendant.    Par  i 
denee  is  ailnii--.il.  1,-  to  identify  the  parties  to  such  a  judgment     Bradf. 
Rogers,  2  U.  C.  •">?.     A  linal  judgment  in  partition  omitted  one  of  the  | 
shown  in  the  pleadings  to  have  an  interest  in  tin- land.    (Four  persons  were  al- 
leged to  own  one-twelfth  of  the  land.     In  the  decree  that  share  was  allotted  to 

of  them  by  name:  no  mention  was  made  of  the  other.)    It  1  that 

it  illicit  •  *•  presumed,  to  MipjK>rt  the  judgment,  that  some  reason  was  shown  in 
tin-  proceedings  for  the  omission  in  the  decree;  but  the  omission  did 
the  decree  void.     Nor  could  parties  not  injured  by  the  omission  take  advantage 
of  it.     Alston  v.  Km.  !  (18  &  W.  Rep.  5M). 

iv  judgment,  when  ambiguous  as  to  the  party  or  parties  in  favor  of  or 
against  whom  it  is  rendered,  must  be  read  in  the  light  of  th--  entire   re. 
the  cause  in  which  it  was  rendered.     Ihinlap  v.  Soutln-rlin,  63  T.  88. 

The  failure  to  insert  the  full  names  of  plaintiffs  suing  as  a  firm  in  the  Hnnl 
judgment  is  no  ground  for  reversal  on  appeal.     The 

and  costs  of  api«-al  im]M>sed  upon  appellant.     \Vn-h'  T.  644 

(13  S.  W.  I  In   the  judgment  entry  in  a  suit  against  Jame*  I*  T' 

md  <;il»M-rt  I..  M. Murphy,  iwirtners,  the  name  (hibriel  appeared  instead  of 
Cilhert,  ami  it  wa-  held  that  as  from  the  entire  record  it  i-learl\  ap|»-arvd  that 
the  name  <i<il>n>l  \\.i-  a  clerical  error,  such  error  -1. 

.tioii  a^aui-t  the  real  defendants.     Halx.dl  v.  M, -Murphy.  M-, 

:??).  A  judKinent  m  favor  of  the  firm  of  Case y  &  Swawy  de»eri»».-«l  the 
partners  as  J.  A  .ud  Charles  Swasey.  whereas  their  names  «• 

and  C.  J.  Sw.t-.-y."  It  followed  the  |»-titioii.  Kx.cuti-«n  issued  on  the 
ju  lament,  and  the  firm  purchased  land  on  a  sale  thereunder,  and  the  d.-ed  wan 
ma  I  to  Casey  &  S\v  :ttinn  their  I'hristian  names.  The  ju.lgmei.' 


JUDGMENTS.  [§§  619.  620. 

£019.  Certainty  required  in  judgment  entry. 

The  entry  of  judgment  must  carefully  recite  the  finding  of  the 
jury,  or  the  several  findings,  if  more  than  one,  upon  which  the  judg- 
ment is  based.1  It  should  contain  in  itself  sufficient  precision  and 
certainty  to  enable  the  clerk  to  issue  execution  by  the  inspection 
of  it,  without  reference  to  other  entries.2  The  form  is  not  material, 
if  it  contains  the  substance  required  by  law.3  It  need  not  recite 
the  facts  on  which  it  is  founded.  It  is  sufficient  if  they  are  stated 
in  the  pleadings  and  ascertained  by  the  judgment.4  A  judgment 
for  the  plaintiff  for  a  certain  sum,  subject  to  an  offset  agreed  upon 
by  the  parties  aforesaid,  is  void  for  uncertainty.5 

§  620.  Must  conform  to  the  case  made. 

The  judgment  must  conform  to  the  pleadings,  the  nature  of  the 
case  proved,  and  the  verdict,  if  any.6  A  judgment  which  does  not 
conform  to  the  pleadings,  but  goes  outside  thereof,  and  determines 
issues  and  grants  relief  not  presented  or  prayed  for,  is  erroneous, 
and  will  be  set  aside  on  appeal.7  Recovery  must  be  had  upon  the 
cause  of  action  declared  upon.  If  plaintiff  fails  to  prove  a  specific 
contract,  as  stated,  he  cannot  recover  upon  a  quantum  meruit* 
The  amount  of  the  recovery  must  correspond  with  the  amount 
proved,  if  within  the  allegations.9  The  allegations  in  all  cases  must 
be  broad  enough  to  let  in  the  proof,  and  no  evidence,  not  supported 
by  the  allegations,  can  sustain  a  verdict  and  judgment.10 

not  subject  to  collateral  attack,  and  in  a  suit  by  Casey  and  Swasey  concerning 
the  land  the  deed  was  held  sufficient  to  connect  them  with  the  title.  Ballew  v. 
Casey,  9  S.  W.  Rep.  189. 

On  appeal  it  was  urged  as  error  that  judgment  had  been  rendered  against  the 
City  Water  Company  of  Austin  in  an  action  against  the  Austin  Water,  Light 
&  Power  Company.  This  was  not  reversible  error  where  it  appeared  that  the 
name  was  treated  on  the  trial  as  the  City  Water  Company  of  Austin.  Austin 
Water,  Light  &  Power  Co.  v.  Makemson,  27  S.  W.  Rep.  588. 

i  Rule  63. 

'-Stafford  v.  King,  80  T.  257;  Roberts  v.  Landrum,  20  T.  47L 

3  Hamman  v.  Lewis,  34  T.  474. 

« Hamilton  v.  Ward,  4  T.  356. 

5Spiva  v.  Williams,  20  T.  442.  Where  the  judgment  entirely  omits  the  sum 
adjudged,  and  makes  no  reference  to  the  verdict,  it  is  erroneous  for  uncertainty, 
although  the  entry  commences  by  a  recital  of  the  verdict,  which  is  for  a  sum 
certain.  Barnett  v.  Caruth,  22  T.  173. 

«R.  S.  1335;  Cooper  v.  Conerty,  83  T.  133  (18  S.  W.  Rep.  834). 

JOsborne  v.  Barnett,  1  App.  C.  C.,  §  131;  McKey  v.  Welch,  22  T.  390;  Hall  v. 
Jackson,  3  T.  305;  DenisonV.  League,  16  T.  399;  Chrisman  v.  Miller,  15  T.  160; 
McArnis  v.  Mclntyre,  1  App.  C.  C.,  §  514;  Blum  v.  Ferguson,  1  App.  C.  C.,  §  581 ; 
Menard  v.  Sydnor,  29  T.  257. 

6  Jones  v.  Brazile,  1  App.  C.  C.,  §  299;  Gammage  v.  Alexander,  14  T.414;  Chris- 
man v.  Miller,  15  T.  160;  Denison  v.  League,  16  T.  406;  Lemmon  v.  Hanley,  28 
T.  219;  Cross  v.  Huffaker,  1  App.  C.  C.,  $  136;  Peet  v.  Hereford,  1  App.  C.  C., 
§§  871,  874,  875. 

9  G.,  H.  &  S.  A.  Ry.  Co.  v.  Buckley,  1  App.  C.  C.,  §  687. 

10  Rogers  v.  Harrison,  1  App.  C.  C.,  §  495;  Mims  v.  Mitchell,  1  T.  443;  Hall  v. 


§  621.]  JUDGMENTS. 

\Vhen  the  entire  record  shows  that  tho  trial  court,  in  rr-ndrring 
juil^iiK-nt,  passed  upon  matters  not  fairly  liefon*  it  l»v  tin:  pl.-a 
in  the  case,  and  gave  relief  for  which  there  was  no  j  u  -h  judg- 

ment is  erroneous,  and  will  be  reversed.1    A  judgment  erroneous 
for  want  of  issues  by  the  pleadings  will  be  corrected  on  appeal* 

§  621.  Must  be  based  on  the  verdict. 

The  judgment  must  conform  to  the  verdict.1  The  verdict  must 
iind  all  the  issues  made  by  the  pleadings,  in  language  which  does 
not  admit  of  mistake;  it  should  be  the  end  of  conn-..  Thi« 

judgment  must  be  founded  upon  facts  legally  ascertained;*  and  the 
court  must  look  to  the  verdict  to  determine  what  judgment  to  ren- 
der.' When  a  verdict  is  in  response  to  special  issues  alone,  the  court 
will  not  look  beyond  the  finding  to  any  fact  apparent  in  the  r<- 
in  aid  of  the  judgment;  the  judgment  must  be  sustained  by  the  find- 
ing.7 

Resort  can  only  be  had,  in  supporting  a  judgment,  to  tho 
and  to  admissions  contained  in  the  pleadings.     Hence,  when  the 
existence  of  a  lien  was  declared  by  a  judgment,  but  in  rega; 
which  both  the  verdict  and  the  pleadings  of  the  party  ;i  .  horn 

Jackson,  3  T.  309;  Paul  v.  Perez,  7  T.  845;  Smith  v.  McGehee.  1 


1  Wheeler  v.  Wheeler,  65  T.  573.  A  judgment  rendered  in  favor  of  parties  not 
mentioned  as  parties  in  the  pleadings  is  error.  Bell  v.  Vanzandt,  54  T.  150. 
When  judgment  is  rendered  against  the  principal  in  a  note,  and  also  against  an 
indorser,  on  a  petition  which  asks  execution  against  the  in.l.irser  only,  in  the 
alternative,  it  is  error  to  render  judgment  directing  execution  against  the  prop- 
erty of  both,  jointly.  Lewis  v.  Dennis,  54  T.  487.  When  a  judgment  dispose* 
of  the  entire  case  as  to  all  defendants,  but  affords  specific  relief  to  some  of  them. 
in  response  to  their  prayers,  which  was  not  afforded  to  others  who  did  not  ask 
it.  it  presents  no  cause  for  reversal  Reeves  v.  Roberta,  63  T.  550. 

When  issues  on  facts  are  found  by  the  court,  and  its  judgment  pronounced 
on  conclusions  of  law  announced,  the  failure  to  find  on  a  material  issue  about 
which  the  testimony  is  conflicting  will  be  cause  for  reversal  of  the  judgment. 
Marx  v.  Heidenhrimer,  63  T.  304.  Where  several  parties  join  as  plain  tills  in  a 
suit  to  recover  land,  a  judgment  against  the  defendant,  whu-h  also  ntte  inpts  to 
divest  title  out  of  some  of  the  plaintiffs  as  agait  r  plaintiffs,  is  void 

when  til-'  pleadings  raise  no  issue  as  between  the  plaintiffs,  and  may  be  im- 
peached collaterally.    Sandoval  v.  Rosser,  2*3  a  W.  Rep,  980, 

*  Williamson  v.  Wright,  1  U.  C.  710. 

»R  a  1335:  Tinnen  v.  Mathews,  Dallam,  491  ;  Burnett  v.  Harrington.  58  T.  858. 

«  Moore  v.  Moore,  67  T.  293  (8  &  W.  Rep,  284);  Clendening  T.  Mat  hews.  1  App, 
C  C.,  g8  904,  905;  Bledsoe  v.  Wills,  29  T.  650. 
M.i  thews,  1  App.  C.  C,  g  906. 

•La  Rue  v.  Ifc.u,  r,  1  App.  C.  G,§  1285;  Claiborne  v.  Tam 
Pac.  Ry.  Co.  v.  Logan,  8  App.  C  C.,  §  186;  Kuhlumn  v.  Modlinka.  29  T.  885.    V 
nlirt  is  fc.r  ihe   principal  of  a  note,  judgment  cannot  be  entered  al- 
interest  and  attorneys'  fee*  „  Freiberg  v.  HrunHwu-k-Kt  .  App, 

C.  C.,  £  142.    When-  tin-  venlic-t  finds  a  certain  aura  as  dt-»>t.  tho  «..uri  cannot 
U'l.l  an  additional  sum  as  damages.     Tinncn  v.  Mathrw*.  Dallam,  49L 

"Smith  v.  Wan.  D,  00  T.  462;  Kuhliua..  nka,  29  T.  881 


5SO  JUDGMENTS.  [§  622. 

it  was  adjudged  were  silent,  there  was  no  legal  basis  to  support  it, 
and  this  though  the  judgment  contained  a  recital  that  the  party 
orally  admitted  the  lien  after  the  charge  to  the  jury  was  read,  and 
before  their  retirement  to  consider  of  their  verdict.1  Where  the 
finding  of  a  jury  under  issues  submitted  to  them  could  not  possibly 
be  arrived  at  without  also  finding  another  fact  not  expressed  but 
necessarily  included  in  the  verdict,  judgment  can  be  rendered  as  if 
that  fact  had  been  positively  found.2  It  matters  not  how  a  finding 
is  expressed,  so  that  the  meaning  of  the  jury  is  clear  and  tangible, 
and  it  is  suggested  that  what  is  not  expressed  may  be  implied,  pro- 
vided the  implication  be  a  necessary  deduction  from  that  which  is 
directly  stated.3 

§  622.  Of  the  relief  granted. 

The  judgment  must  be  so  framed  as  to  give  the  party  all  the  re- 
lief to  which  he  may  be  entitled,  either  at  law  or  in  equity.4  Sub- 
ject to  the  limitations  prescribed  by  law,  that  is,  in  cases  in  which 
they  have  jurisdiction,  the  district  and  county  courts  may  grant 
any  relief  which  may  be  granted  by  either  courts  of  law  or  equity.5 
Formerly  it  was  provided  that  such  relief  might  be  granted  if 
prayed  for,6  but  the  condition  is  now  omitted.  The  statute  on 
pleading,  however,  still  provides  that  the  plaintiff  shall  state  the 
nature  of  the  relief  which  he  requests  of  the  court.7 

When  there  is  only  a  prayer  for  specific  relief  the  judgment  will 
not  go  beyond  it,8  except  in  cases  in  which  the  relief  is  prescribed 
by  statute.9  Under  the  prayer  for  general  relief  the  court  grants 

1  Handel  v.  Elliott,  60  T.  145. 

2  Jones  v.  Ford,  60  T.  127. 

3  Moore  v.  Moore,  6?  T.  293  (3  S.  W.  Rep.  284).    Where  a  verdict  includes  inter- 
est, a  judgment  not  including  such  interest  is  not  responsive.    Irvin  v.  Garner. 
50  T.  48.    Plaintiff  brought  suit  to  cancel  notes  and  deeds  of  trust  and  for  other 
relief,  and  defendant,  among  other  things,  set  up  a  lien  on  shares  of  stock  trans- 
ferred to  it  by  plaintiff.    In  the  absence  of  an  admission  in  plaintiff's  petition,  a 
judgment  declaring  such  lien  was  error  where  the  verdict  contained  no  finding 
in  regard  thereto,  although  there  was  evidence  to  support  the  finding,  if  it  had 
been  made.    Blakely  v.  El  Paso  Bldg.  &  Loan  Ass'n,  26  S.  W.  Rep.  292. 

*  R.  S.  1335. 

SR.  S.  1106,  1162;  Henry  v.  Moore,  1  App.  C.  C.,  §  881. 

6  P.  D.,  art.  1410. 

'  R.  S.  1191. 

»  Wheeler  v.  WTheeler,  65  T.  573;  Nowlin  v.  Hughes,  2  App..C.  C.,  §  314;  City  of 
Houston  v.  Emery,  76  T.  282  (13  S.  W.  Rep.  264);  Osborne  v.  Barnett,  1  App.  C.  C., 
§  131;  Hillebrant  v.  Barton,  39  T.  599;  Wyche  v.  Clapp,  43  T.  543;  Moreland  v. 
Barnhart,  44  T.  275;  Moore  v.  Guest,  8  T.  117;  Texas  PI.  (1893),  §  411.  A  judg- 
ment determining  the  extent  of  the  interests  of  defendants  as  between  them- 
selves, which  is  not  prayed  for  by  the  pleadings,  cannot  be  rendered.  O'Leary 
v.  Durant,  70  T.  409  (11  S.  W.  Rep.  116;. 

»  Hipp  v.  Huchett,  4  T.  20. 


-'••*.]  JUDGMENTS. 

such  relief  as  the  party  is  entitled  to  on  the  pleadings  ami 

•-S1  although  there  be  no  specific  j»ra\ 

Where  the  district  court  renders  a  decree  foreclosing  a  mortgage, 
it  has  authority  to  issue  a  writ  of  assistance  to  put  a  purchaser 
under  the  decree  in  possession,  on  application  to  the  court  1 

•Mient  for  that  purpose,  without  re<|uirin<:  him  to  resort  to  suit 
to  obtain  the  possession.  In  cases  of  this  character,  it  is  said,  it 
would  Me  the  better  and  safer  practice  for  t ho  |  ariv,  in  the  con- 
cludiiu:  prayer  of  his  petition,  to  ask  specially  for  all  the  particular 
1.  "  This  is,  however,  not  necessary,  and  the  practice 
in  chancory  has  been,  in  such  cases,  to  grant  all  the  reliof  necessary, 
whether  it  has  been  specially  asked  for  or  not.  Such  has  been  the 

:ice  of  the  district  courts  of  this  state."*    The  party  now  ob- 
tains full  relief  by  virtue  of  the  statute.4 

£  623.  When  judgment  rendered  in  certain  ccses. 

Judgments  rendered  upon  questions  raised  upon  citations,  plead- 
ings, and  all  other  proceedings  constituting  the  record  pn»|»er  a^ 
known  at  common  law,  must  be  entered  at  the  date  of  each  term 
when  pronounced.     Where  a  cause  has  been  submitted  to  the  judge 
for  trial  on  the  law  and  facts,  it  must  be  determined  during  the 
term,  and  judgment  must  be  rendered  at  least  two  days  l»ef<>iv  the 
end  of  the  term  of  the  submission,  if  there  has  been  a  trial  and 
mission  one  day  before  that  time,  unless  the  cause  be  conti 
after  submission  for  trial,  by  consent  of  parties  placed  on  the  rec- 
ord.5   A  judgment  rendered  less  than  two  days  I  *•!'«•  re  the  «; 
the  term  will  not  be  reversed  unless  exceptions  be  saved  at  t 
Before  the  adoption  of  the  rule  it  was  not  error,  where  no  t- 
tion  was  made,  for  the  judge  to  take  the  case  under  advisement 
render  judgment  at  a  subsequent  term.    To  prevent  the  great  diffi- 
culty which  might  arise  in  making  up  statements  of  facto  and  bills 

i  Smith  v.  Clapton,  4  T.  109;  Hardy  v.  De  Leon,  5  T.  211;  Nash  T.  George.  6  T. 
TraiiiiiH-11  v.  Watson,  25  T.  Sup.  210;  Cravens  v.  Wilson,  48  T.  894;  Voigt- 
lan.k-r  v.  Brotze,  59  T.  286. 

'Hardy  v.  De  Leon,  5  T.  211.  240;  Goodman  v.  Hml.-y.  80  T.  499  (18  a  W 
4::-.-  . 

»  Voigtlander  v.  Brotze,  59  T.  286,  citing  Hardy  T.  Le  Leon.  5  T.  246;  Trai. 
r.  Wats, ,n.  •„'.-•  T.  Sup.  -JW;  Hipp  v.  Hu.-h.-tt.  4  T.  20t 

*  Acts  of  1885,  jx  10;  R.  S.  1341. 

iles  65, 66.  An  amendment  of  a  judgment.  un<l«-r  nrti<  !••  U'.T.  K,  vist-.i 
uliu-li  is  iiia.l.-  en  tin-  last  day  of  th.-  t.-rm.  but  wliirh  fa  of  •  chat 

authorized  by  statute  to  be  made  at  any  time,  even  in  vacation,  fa  not, 
ise  was  first  submitt.-l  for  .It-termination  !•>  th.-  juil^e  on  the  law  at 
in. .iv  than  three  days  before  the  close  of  the  term,  violativo  of  rule  61 

M.-1'lu-rs..n  v.  Johnson.  69  T.  4H4  (fl  S.  W.  Rep.  7V8). 

•  Glenn  v.  Kinil.r«.uk'h.  7oT.  l  IT  18  a  W.  Rep.  81).    There  fa  no  error  in  r. 

ing  judgment  on  the  last  day  of  th.-  t  ••MM  \viu  -n  the  cause  fa  submitted  to  the 
court  on  that  day.    Stark  v.  Miller,  63  T.  164. 


JUDGMENTS.  [§  624. 

of  exceptions,  and  other  embarrassing  questions,  should  the  practice 
prevail,  without  proper  limitations,  of  taking  cases  under  advise- 
ment until  a  succeeding  term,  was  doubtless  the  object  of  the  rule.1 
The  rule  was  adopted  upon  mature  consideration.  It  was  suggested 
by  experience  of  its  necessity,  and  was  not  intended  as  a  mere 
brutum  fulmen? 

%  624.  Recitals  in  judgments. 

The  trial  courts  should  see  that  the  recitals  in  their  judgments  in 
regard  to  the  service  of  process  and  the  appearance  of  the  parties 
are  strictly  true.  It  is  said  that  a  want  of  accuracy  may  lead  to 
irreparable  injury.3  Where  the  recital  is  to  the  effect  that  the  court 
fully  heard  and  understood  the  pleadings,  etc.,  it  is  taken  as  conclu- 
sive against  an  objection  urged  that  the  judgment  was  by  default, 
in  the  absence  of  anything  appearing  in  the  record  to  support  the 
objection  or  contradict  the  recital.4 

It  is  not  necessary  to  recite  the  facts  in  the  judgment.5  "When 
the  meaning  of  a  decree  from  its  terms  is  involved  in  doubt,  it  must 
be  construed  in  the  light  of  its  recitals,6 

The  judgment  entry  ought  to  be  made  to  show  affirmatively  what 
exceptions  to  pleadings  were  sustained,  and  the  court  on  appeal  will 
not  supply  such  omissions,  by  construction  or  otherwise.7 

If  a  judgment  of  the  district  court  be  correct,  its  validity  cannot 
be  affected  by  the  fact  that  the  presiding  judge  gave  a  wrong  rea- 
son for  it.8  The  entries  made  by  a  district  judge  on  his  docket  are 
for  his  own  convenience  and  that  of  the  clerk  in  making  his  entries. 
They  form  no  part  of  the  record,  and,  in  case  of  a  discrepancy  be- 
tween such  entries  and  those  made  in  the  records  of  the  court  by 
the  clerk,  the  latter  must  prevail,9 

1  March  v.  Huyter,  50  T.  243. 

2  Camoron  v.  Thurmond,  56  T,  22, 

3  Ingle  v.  Bell,  84  T.  463  (19  S,  W.  Eep.  553), 

<  Leberman  v.  Hill,  1  App.  C.  C.,  §  26.  When  it  is  shown  that  defendants 
against  whom  judgment  was  rendered  were  served  with  process,  the  omission 
of  the  judgment  to  contain  a  recital  that  they  appeared,  either  in  person  or  by 
attorney,  is  not  material  Caldwell  v.  Brown,  43  T.  216. 

5  Sears  v.  Green,  1  U.  C.  727,  citing  Hoffman  v,  Bo  wen,  17  T.  507;  Cook  v.  Han- 
cock, 20  T.  3;  Hamilton  v.  Ward,  4  T.  356.  In  Patton  v.  Mills,  Dallam,  364,  it  is 
said  that  in  cases  in  equity,  where  the  testimony  is  in  pais,  it  is  usual  to  embody 
the  material  facts  in  the  decree;  but  that  where  the  facts  are  matters  of  record, 
it  is  not  usual  or  necessary  to  state  the  grounds  of  the  decree  on  its  face. 

STorrey  v.  Cameron,  73  T,  583  (11  S.  W.  Kep.  840). 

7  Broussard  v.  Railway  Co.,  75  T.  702  (13  S.  W.  Rep.  68). 

8  Swift  v.  Trotti,  52  T.  498;  Watkins  v,  Junker,  4  Civ.  App,  629  (23  S,  W,  Eep. 
802). 

*  Stark  v,  Miller,  63  T,  164. 


§  C25.]  JUDGMENTS. 

£625.  Entry  nuno  pro  tone. 

•rv  court  has  a  right  to  judge  of  its  own  records  and  minutes; 
and  if  it  appears  satisfactorily  to  it  that  an  order  was  actuallv 
•  at  a  former  term  and  omitted  to  be  entered  by  the  clerk,  tlu» 
court  may  at  any  time  direct  such  order  to  be  entered  on  the  roo- 
as  of  the  term  when  it  was  made.  And  a  record  so  amended 
stands  as  if  it  had  never  been  defective,  or  as  if  the  entries  had  been 
made  at  a  proper  term.1  But  an  entry  nunc  pro  tune  cannot  be 
made  at  a  subsequent  term,  after  final  judgment,  without  notice  to 
the  opposite  party.2  Great  latitude  has  been  allowed  to  courts  in 
making  entries  nunc  pro  tune,  but  generally  judgments  will  not  be 
entered  nunc  pro  tune  unless  there  is  something  in  the  record  by 
which  it  can  be  known  that  in  fact  the  judgment  was  rendered. 
But  although  there  may  not  be  sufficient  in  the  record  to  make  an 
order  or  judgment  relate  back  to  the  time  when  it  was  actually 
rendered,  it  may  still  take  effect  as  a  valid  judgment  from  the  time 
it  is  actually  entered.3  The  judgment  proper  is  what  is  ordered  and 
considered  by  the  court,  and  is  a  judicial  act;  the  entry  of  judgment 
is  ministerial,  and  is  necessary  to  preserve  the  evidence  of  what  was 
in  fact  ordered  by  the  court.  To  authorize  the  entry  of  a  judgment 
nunc  pro  tune,  the  proof  that  it  was  rendered  should  be  definite  and 
absolute  —  absolute  from  the  record  that  a  judgment  was  rendered, 
and  its  terms  and  conditions  should  be  distinctly  established  by 
competent  testimony.4 

Judgments  nunc  pro  tune  are  never  permitted  to  affect  the  rights 
of  such  persons  as  have  acquired  rights  between  the  time  a  judg- 

i  Rhodes  v.  State,  29  T.  VSS. 

*  Wheeler  v.  Goffee,  24  T.  660.  Misprision  of  the  clerk  in  failing  to  enter  judg- 
ment nisi  may  be  corrected  by  entering  judgment  nunc  pro  tune  at  the  time  of 
entering  final  judgment  Ward  v.  Ringo,  2  T.  420. 

•Kelly  v.  Belcher,  1  App.  C.  C.,  g  1126.  It  is  held  that  a  judgment  entered 
upon  the  minutes  of  the  clerk  nunc  pro  func,  without  notice  to  the  party 
against  whom  it  was  entered,  and  without  evidence  in  support  of  the  motion, 
was  without  authority  of  law.  Reference  is  had  to  article  1350,  Revised  Stat- 
utes, which  provides  for  the  correction  of  a  mistake  in  the  record,  on  notice  to 
the  opposite  party.  Cowart  v.  Grain,  1  App.  C.  C.,  g  184 

«Camoron  v.  Thurmond,  56  T.  22.  In  this  case  there  was  nothing  of  record 
showing  that  a  final  judgment  was  rendered,  and,  of  course,  nothing  as  to  the 
character  of  the  finding  by  the  court.  The  court  say:  "If  the  character  of  the 
judgment  delivered  is  to  be  established  by  evidence  outside  the  record,  the  testi- 
mony should  be  as  full  and  ample  and  with  all  the  sanctions  necessary  to  estab- 
lish any  other  fact  The  judge's  notes  upon  the  docket  his  opinion  filed,  when 
the  law  requires  him  to  write  and  file  an  opinion,  have  been  received.  The  eri- 
donee  which,  under  our  statute,  is  admissible  to  amend  a  judgment  by,  would 
be  sufficient  doubtless,  to  supply  one.  So  as,  under  a  rule  of  court,  it  is  required 
of  tbo  rounsei  of  the  party  who  has  obtained  the  judgment  to  prepare  the  de- 
cree and  submit  it  to  the  judg*  for  his  approval,  testimony  might  be  received 
to  show  the  character  of  the  judgment  rendered  by  the  copy  of  the  decree 
prepared,  and  that  it  had  been  accepted  by  the  judge  and  ordered  to  be  so 
entered." 


500  JUDGMENTS.  [§  C26. 

ment  is  really  rendered  and  the  time  at  which  it  was  entered  upon 
the  minutes  now  for  then.1 

Though  the  court  may  erroneously  hold  that  a  defendant  is  not 
in  court  in  such  manner  as  to  authorize  a  judgment  by  default,  such 
error  cannot  be  revised  at  a  subsequent  term  of  the  court  upon  a 
motion  to  enter  a  different  judgment  nunc  pro  tune.  A  judicial 
error  in  entering  up  an  order  at  a  former  term,  which  was  not  sanc- 
tioned by  law,  or  the  failure  to  enter  up  one  which  should  have 
been  rendered  but  for  the  incorrect  ruling  of  the  court  upon  points 
made  before  it,  cannot  be  remedied  by  a  judgment  to  the  contrary 
entered  nune  pro  tune.2 

g  626.  Judgment  by  consent. 

The  cases  are  numerous  in  this  state  in  which  judgments  by  con- 
sent, or  by  agreement  of  parties,  have  been  sustained.  A  judg- 
ment so  entered  constitutes  an  estoppel,  and  will  stand  against  a 
collateral  attack;*  it  is  a  waiver  of  all  errors  committed  before  its 
rendition.4  The  parties  and  their  privies  are  estopped,  in  the  ab- 

1  Eastham  v.  Sallis,  60  T.  576,  citing  Freeman  on  Judgments,  66;  Jordan  v. 
Petty,  5  Fla.  326;  McCormick  v.  Wheeler,  36  III  114;  Graham  v.  Liznor,  4  B. 
Mon.  18;  Aoklen  v.  Acklen,  45  Ala.  609;  Ligon  v.  Rogers,  12  Ga.  281;  Perdue  v. 
Bradshaw,  18  Ga.  287. 

-Perkins  v.  Dunlavy,  61  T.  241.  A  court  having  once  held  that  a  citation  to 
defendant  was  invalid,  that  no  appearance  had  taken  place,  and  that  a  judg- 
ment by  default  could  not  be  rendered,  has  no  authority,  at  a  subsequent  term, 
to  reverse  its  decision,  overrule  the  motion  to  quash,  pronounce  judgment  by 
default,  and  execute  a  writ  of  inquiry.  For  such  errors  the  defeated  party  has 
his  remedy  by  appeal  after  final  judgment  But  if  the  suit  was  for  damages 
tor  a  tort,  he  cannot,  by  reviving  an  action  (after  the  death  of  the  defendant) 
against  the  administrator,  have  the  issue  tried  as  to  whether  he  was  entitled  to 
a  judgment  against  the  deceased  in  his  life-time,  and  thus  cause  the  adminis- 
trator to  defend  against  a  claim  for  damages,  the  right  to  recover  which  ceased 
with/the  original  defendant's  death.  In  every  case,  to  entitle  an  applicant  to 
have  his  judgment  entered  nunc  pro  tune  on  account  of  the  death  of  one  of 
the  parties,  the  action  must,  at  the  time  of  the  death,  have  been  ready  for  the 
rendition  of  the  final  judgment  Such  is  not  the  case  when  a  trial  has  still  to 
take  place. 

» City  of  Goliad  v.  Weisiger,  4  Civ.  App.  653  (23  S.  W.  Rep.  694).  In  Gunter 
v.  Fox,  51  T.  383,  a  judgment  rendered  on  the  agreement  of  the  administrator 
was  binding  on  the  heirs.  In  Hollis  v.  Dashiell,  52  T.  187,  it  was  held  that 
though  consent  to  a  judgment  by  a  guardian  ad  litem  against  his  ward,  or  an 
administrator  against  the  estate,  in  the  absence  of  evidence,  may  be  erroneous, 
the  judgment  is  not  void  by  reason  of  such  consent  In  Ivey  v.  Harrell,  1  Civ. 
App.  226  (20  S.  W.  Rep.  775),  it  was  said  that  the  fact  that  the  judgment  was 
rendered  upon  the  agreement  of  the  special  guardian  did  not  render  it  void; 
that  the  guardian  acted  under  the  supervision  of  the  court,  and  in  a  collateral 
proceeding  it  must  be  presumed  that  the  court  ascertained  the  facts  upon  which 
the  agreement  was  based,  and  allowed  no  wrong  done  to  the  minor. 

4Tait  v.  Matthews,  33  T.  112;  McDaniel  v.  Monday,  35  T.  39.  A  judgment  for 
plaintiff  after  answer,  with  stay  of  execution,  is  a  judgment  by  consent  Bur- 
ton v.  Varnell,  1  T.  635;  Hutchinson  v.  Owen,  20  T.  287. 


-7.]  JUDGMENTS.  591 

scnce  of  fraiul,  from  denying  that  they  assented  to  a  conseht 

It  is  no  valid  objection  to  a  judgment  by  consent  that  the  cause 
of  action  was  so  defectively  stated  as  to  require  a  reversal  had  the 
judgment  been  rendered  on  a  contest  of  rights  between  the  pa; 
The  effect  of  such  a  judgment  is  a  waiver  of  all  errors  except  such  as 
would  involve  the  jurisdiction  of  the  court.1     A  r-.urt  of  equity 
will  only  st-t  aside  a  judgment  rendered  upon  an  unauth«.i 
agreement  of  counsel  when  injury  has  resulted  therefrom   to  the 
party  complaining.    Every  reasonable  presumption  will  be  indi. 
in  favor  of  a  settlement  made  by  an  attorney  dulv  empl 
pecially  after  it  has  been  recognized  by  a  court  and  a  judgment 
thereon  has  been  rendered.1 

?  627.  Excess  in  judgment. 

A  judgment  must  not  exceed  the  amount  prayed  for.4  A  judg- 
ment for  a  larger  sum  than  that  claimed  by  the  pleadings  is  errone- 
ous.* In  some  cases,  where  the  excess  is  trifling,  the  maxim  d* 
'mis  is  applied.*  A  judgment  for  the  full  amount  claimed  must 
be  supported  by  the  evidence.7 

l  Cannon  v.  Heinphill,  7  T.  1S4. 

-'Lessing  v.  Cunningham.  55  T.  231;  Garner  v.  Burleson,  26  T.  848. 

1  Williams  v.  Nolan,  53  T.  708.     Acquiescence  in  a  judgment  does  not  neces- 
sarily constitute  a  ratification.    Whether  there  has  been  such  an  acquie*' 
as  to  amount  to  a  ratification  is  a  question  of  fact  for  the  jury.    Sneed  v.  Town* 
send.  -,'  a.  i '.  :«0. 

A  judgment  in  the  district  court  entered  upon  consent  of  the  parties,  that  the 
plaintiff  recover  the  lot  in  controversy  and  vesting  the  titl«-  thereto  in  the 
plaintiff,  but  ascertaining  the  purchase-money  due,  and  postponing  the  issu- 
ance  of  a  writ  of  possession  until  the  payment  of  the  purchase-money  should 
be  made,  is  conclusive  between  the  parties  as  to  the  title  to  the  land,  also 
against  purchasers  with  notice.  That  the  judgment  provided  for  arbitration 
to  ascertain  the  balance  of  purchase-money  due  did  not  affect  the  question  of 
title.  The  court  had  the  power  to  ascertain  the  facts  ujx.n  which  the  issuance 
of  the  writ  of  possession  was  made  to  depend.  Henderson  T.  Moss,  83  T.  90  (18 
a  W.  Rep.  555). 

An  agreement  of  parties  under  which  a  judgment  was  rendered  does  not  en- 
large the  scope  of  the  estoppel  of  the  judgment  when  it  was  such  as  pi 
would  have  been  entitled  to  without  the  agreement.    Willis  v.  Pounds,  0  Civ. 
APJX  512  (25  &  W.  Rep.  715). 

«  Wilkins  v.  Burns,  25  &  W.  Rep.  431. 

•Hillebrant  v.  Barton,  39  T.  598;  O.,  G  &  8.  F.  By.  Co.  v.  Thompson,  4  Apfx 
C.  G,  §  15«. 

•  Leberman  v.  Hill,  1  App.  G  G,  g  27;  Rankin  v.  Filburn,  1  App.  C,  G,  §  7*8. 

U  &  G.  N.  Ry.  Co.  v.  Saul.  2  App.  G  G,  g  699l    The  recital  in  the  judgment 
that  the  purchase-rnoney  with  interest  from  an  incorrect  date  amounts  to  a 
stated  sum  is  immaterial,  when  it  appears  that  the  amount  for  which  the  judg- 
ment was  rendered,  being  the  amount  so  stated,  does  not  exceed  the  si. 
which  the  I'.-uty  complaining*  was  justly  liable.    Dean  v.  Blount,  71  T. 
168). 

A  judgment  for  $130  is  erroneous  where  but  $100  is  demanded.    Warren  v. 


592  JUDGMENTS.  [§§  628-630. 

§  628.  May  include  interest,  when. 

Judgment  may  be  rendered  in  the  aggregate  for  the  debt  and  in- 
terest due  at  the  time.1  In  rendering  judgment  upon  facts  found 
by  the  jury,  the  court  cannot  add  a  fact  not  included  in  the  verdict, 
as  interest  on  the  sum  found,  where  interest  did  not  follow  as  an 
incident,  even  though  the  uncontradicted  testimony  showed  the  fact 
so  found.2  A  judgment  will  bear  legal  interest  from  its  date  with- 
out any  recital  therein  to  that  effect,  and  may  be  entered  so  as  to 
bear  interest  without  any  prayer  to  that  effect.8  The  legal  rate  on 
jndgments  is  six  per  cent. ;  but  if  the  contract  on  which  the  judg- 
ment is  rendered  bears  a  specified  rate  greater  than  six  per  cent, 
and  not  exceeding  ten  per  cent.,  the  judgment  shall  bear  the  same 
rate.4 

§  629.  May  be  for  or  against  one  or  more  parties. 

Judgment  may,  in  a  proper  case,  be  given  for  or  against  one  or 
more  of  several  plaintiffs,  and  against  or  for  one  or  more  of  several 
defendants  or  interveners.5  In  an  action  for  conversion  by  tenants 
in  common,  a  judgment  may  be  rendered  against  one  plaintiff  and 
in  favor  of  the  others.6  It  is  error  to  render  judgment  against 
some  of  the  defendants  without  having  discontinued  as  to  others 
not  served.7  Where  one  of  several  defendants  fails  to  answer  and 
the  case  goes  to  trial,  and  there  is  a  verdict  for  the  defendants,  it  is 
error  to  render  judgment  in  favor  of  all  the  defendants,  although 
a  judgment  by  default  might  not  be  taken  against  the  defendant 
who  failed  to  answer.8 

§  630.  Description  of  land. 

A  judgment  in  trespass  to  try  title  must  describe  the  land  with 
sufficient  certainty  to  identify  it ;  otherwise  it  is  void.9  It  should 
contain  a  description  such  as  would  be  a  guide  to  the  sheriff  in  exe- 
cuting a  writ  of  possession ;  failing  in  this,  the  judgment  will  be  re- 
versed.10 A  judgment  will  be  reversed  when  for  the  recovery  of 

Prewett,  25  S.  W.  Rep.  647.  Opinion  evidence  that  certain  work  could  be  per- 
formed in  from  twelve  to  fifteen  days  does  not  justify  a  judgment  for  twenty 
days'  work.  Ostrom  v.  Smith,  25  S.  W.  Rep.  1130. 

1  Frazier  v.  Campbell,  5  T.  275. 

2  Aiken  v.  Jefferson,  65  T.  137;  Connor  v.  Elkins,  66  T.  551  (1  S.  W.  Rep.  798). 
s  Ross  v.  McGuffin,  2  App.  C.  C.,  §  459. 

<  R.  S.  3105. 
»  R.  S.  1336. 

•  Ward  v.  Gibbs,  80  S.  W.  Rep.  1125. 

7  Rhone  v.  Ellis,  30  T.  80. 

8  Wells  v.  Moore,  15  T.  521.    Where  an  indorser  was  sued  but  not  served,  it  is 
immaterial  that  the  judgment  by  default  took  no  notice  of  him.    Battle  v. 
Eddy,  31  T.  868. 

•  Hearne  v.  Erhard,  83  T.  60. 

10  Jones  v.  Andrews,  72  T.  5  (9  a  W.  Rep.  170).    Where  the  value  of  the  im- 


•1.]  JI-DGMENT8.  593 

land  not  described  in  the  pleadings  nor  in  the  verdict.1     It  has  been 
lifld  that  ;i  ireneral  description  of  the  premises  sued  for  is  sutfi< 
unless  a  different  rule  tie  prescribed  by  statute.2     The  statute  pro- 
vides simply  that  the  judgment  shall  describe  the  premises.1 

•'idirmem  enforcing  a  vendor's  lien  should  describe  the  land  so 

•  enable  the  sheriff  to  execute  it.«    Where  the  judgment  gives 

the  distance  of  certain  lines,  different  from  that  set  out  in  the 

lings,  and  still  calls  for  the  same  well-known  corners  as  those 

described  in  the  pleadings,  it  will  be  a  good  and  sufficient  judgment 

"in-rating  upon  all  the  land  included  between  the  corners.* 

A  judgment  directing  land  to  be  sold,  the  order  of  sale  made 
thereunder,  and  sheriffs  deed  to  the  land,  must  contain  such  de- 
scription of  the  land  sold  as  will  enable  a  person  familiar  with  it  to 
identify  it  from  the  description  given.6 

i  631.  Only  one  final  judgment. 

Only  one  final  judgment  shall  be  rendered  in  any  cause,  except 
where  it  is  otherwise  specially  provided  by  law.7  If  one  or  more 
of  several  defendants  are  in  default,  an  interlocutory  judgment 
may  be  entered  against  them;  but  only  one  final  judgment  can  be 
entered.' 

When  the  judgment  disposes  of  the  entire  case  as  to  all  d.-f 
ants,  but  affords  specific  relief  to  some  of  them,  in  response  to  their 

provements  of  several  defendants  is  involved,  the  judgment  should  show  the 
>].. .  ific  portions  claimed  by  each  defendant     Miller  v.  Moss,  9  S.  W.  Rep. 

i  Roche  v.  Lovell,  74  T.  191  (11  a  W.  Rep.  1079). 

-'  Knowles  v.  Torbit,  53  T 

»  R.  &  5v 

«  Murray  v.  Land,  27  T.  89;  Slater  v.  Wilkins,  87  T.  667.  In  a  suit  to  enforce 
a  vendor's  lien  on  land  for  the  payment  of  a  note  given  for  the  purchase-money, 
there  was  no  specific  description  of  the  land  set  forth  in  the  petition  in  terms, 
1'iit  reference  was  made  for  further  description  to  a  deed  executed  by  the 
vendor.  Judgment  was  rendered  for  the  amount  due  on  the  note,  and  ordering 
the  sale  of  land  not  specifically  described  in  terms  by  the  judgment,  t 

1  to  as  described  in  a  deed  recorded  on  certain  pages  of  the  county  record 
of  deeds.    The  description  of  the  land  was  sufficiently  certain,  the  same  being 
rthsoas  to  be  identified  with  certainty  in  tin-  deed.    The  fa 
i. -iit  described  the  land  further  than  as  averred  in  the  pleadings  by  refer- 
to  the  jmrticular  registry  book  and  page  in  which  the  <lee<l  to  the  Mine 
was  recorded  waa  not  a  variance  from  the  pleading,  but  an  additional  descrip- 
tion, which,  in  the  absence  of  a  statement  of  facts,  it  will  be  presumed  wms  rat- 
tan pleadings.    Rogers  v.  McLaren,  53  T.  42& 

»  Taylor  v.  Carter,  62  T.  489.    See  Broxson  v.  McDougal68  T.  19a    A  judg- 
ni. nt  of  foreclosure  designated  an  entire  tract  of  lnn-1,  the  number  of  acres,  the 
county  in  which  situate,],  tin-  name  of  the  tract,  the  adjoining  survey,  an 
beginning  corner.    This  was  a  sufticient  description.    Thompson  v.  Jones,  l» 

, 

«  Allday  v.  Whitaker,  66  T.  669  (1  a  W.  Rep.  794)i 

'  R  a  1837. 

«R.a  1283. 


694:  JUDGMENTS.  [§  632. 

prayers,  which  was  not  afforded  to  others  who  did  not  ask  it,  it 
presents  no  cause  for  reversal.1  There  may  be  more  than  one  final 
judgment  in  a  case  in  which  there  is  a  proper  severance,  as  in  tres- 
pass to  try  title,  where  each  defendant  claims  a  separate  tract.2 
Where  judgment  is  rendered  against  several  defendants,  if  a  new 
trial  be  granted  as  to  a  part  of  the  defendants  the  judgment  is 
thereby  vacated  as  to  tbe  others,  and  will  not  support  an  appeal.3 

If  there  be  several  defendants  in  a  suit,  and  there  is  no  sever- 
ance, no  final  judgment  can  be  rendered  against  one  until  it  is  ren- 
dered against  all,  however  independent  of  each  other  their  respective 
defenses  may  be.  Hence  a  new  trial  as  to  one  is  a  new  trial  as  to 
all,  and  a  continuance  as  to  one  defendant  is  a  continuance  as  to 
the  others,  although  the  court  may  attempt  to  render  final  judg- 
ment against  the  latter.4  In  trespass  to  try  title,  there  being  sev- 
eral defendants,  if  plaintiff's  motion  for  a  new  trial  be  granted  as 
to  a  part  of  the  defendants  and  overruled  as  to  the  rest,  the  case 
stands  on  the  docket  as  if  there  had  been  no  trial.5 

§  632.  May  pass  title  to  property. 

"Where  the  judgment  is  for  tho  conveyance  of  real  estate,  or  for 
the  delivery  of  personal  property,  the  decree  may  pass  the  title  to 
such  property  without  any  act  to  be  done  on  the  part  of  the  party 
against  whom  the  judgment  is  rendered.' 

In  suits  for  specific  personal  property,  the  judgment  should  be- 
for  the  property  or  its  value.7 

It  is  settled,  without  conflict  of  authority,  that  courts  of  one 
state  or  country  have  no  authority  under  any  circumstances  to  di- 
vest title  to  real  estate  situated  in  a  foreign  state  or  country,  or  to 
direct  the  sale  of  such  land  to  be  made  by  any  one  occupying  a 

1  Reeves  v.  Roberts,  62  T.  550. 

2  Boone  v.  Hulsey,  71  T.  176  (9  S.  W.  Rep.  531);  Chambers  v.  Fisk,  9  T.  261.    The 
fate  of  the  judgment  in  such  a  case  in  favor  of  one  or  more  of  the  defendants 
is  not  dependent  upon  the  result  of  a  motion  for  a  new  trial  or  to  vacate  the 
judgment  made  by  the  other  defendants.    Such  motion  may  be  allowed  as  to 
one  or  more  defendants,  without  affecting  the  judgment  as  to  others.    The 
judgment  as  to  the  others  would  be  final    Boone  v.  Hulsey,  71  T.  176  (9  S.  W. 
Rep.  531). 

3  Long  v.  Garnett,  45  T.  400;  Lay  v.  Bellinger,  1  App.  C.  C.,  §  23;  G.,  C.  *  S. 
F.  Ry.  Co.  v.  James,  73  T.  12  (10  S.  W.  Rep.  744). 

4  Wooters  v.  Kauffman,  67  T.  488  (3  S.  W.  Rep.  465);  Martin  v.  Crow,  28  T. 
614.    The  contrary  doctrine  is  not  supported  by  Roberts  v.  Heffner,  19  T.  130. 

»Watkins  v.  Hill,  2  Civ.  App.  358  (21  S.  W.  Rep.  374). 

«R.S.  1338. 

7  Lang  v.  Dougherty,  74  T.  226  (12  S.  W.  Rep.  29);  Hill  v.  McDermot,  Dallam, 
419;  Blakely  v.  Duncan,  4  T.  184;  Cheatham  v.  Riddle,  8  T.  162.  A  judgment 
for  the  value  of  horses  lost  to  the  owner  by  negligence  of  the  defendant  of  it- 
self passes  title  to  the  defendant  becoming  liable  for  their  value,  St.  L.,  A.  & 
T.  Ry.  Co.  T.  McKinsey,  78  T.  298  (14  S.  W.  Rep.  645). 


§  r>33.]  JUDGMENTS.  .-,..;, 

fiduciary  capacity.  The  extent  of  the  power  in  such  cases  is  to 
decree  that  the  }>erson  invested  with  the  title  make  convevunce  of 
it,  which  may  be  enforced  by  personal  process.  The  decree  is  not 
effectual  unless  the  owner  in  person  executes  a  conveyance.1 

§  633.  Enforcement  of  judgment;  judgment  for  delivery  of  personal 
property. 

The  court  must  cause  its  judgments  and  decrees  to  be  carried 
into  execution;  and  where  the  judgment  is  for  personal  pro]" 
and  it  is  shown  by  the  pleadings  and  evidence  and  the  verdict,  if 
any,  that  the  property  has  an  especial  value  to  the  plaintiff,  tin- 
court  may  award  a  special  writ  for  the  seizure  and  delivery  of  the 
property  to  the  plaintiff,  and  may,  in  addition  to  the  other  relief 
granted  in  such  case,  enforce  its  judgment  by  attachment,  tine  and 
imprisonment.2 

Any  process  issuing  from  a  district  court  under  which  property 
may  be  sold  is,  within  the  meaning  of  the  law,  an  execution.1  A 
writ  of  execution  is  the  embodied  power  of  the  court  in  the  shape 
of  a  command  to  a  ministerial  officer  respecting  the  rights  of  the 
parties  to  the  judgment.4  In  an  action  of  detinue,  where  the  judg- 
ment is  for  the  plaintiff  for  the  property  sued  for  or  its  value,  the 
plaintiff  is  entitled  to  have  the  specific  property,  if  it  can  be  found, 
and  the  judgment  cannot  be  satisfied  in  the  first  instance  by  the 
payment  of  the  adjudged  value  of  the  property.  The  alternative 
judgment  is  for  the  benefit  of  the  plaintiff  and  not  of  the  dc: 
ant.5 

'  M-.rris  v.  Hand,  70  T.  481  (8  S.  W.  Rep.  210);  Moseley  v.  Burrow,  53  T.  896; 
il  v.  A.-klin.  27  T.  175;  Tex.  &  Pac,  Ry.  Co.  v.  Gay.  86  T.  571  (26  S.  W.  Rep. 
599).  The  court  in  an  action  involving  the  title  to  land  pursuant  to  an  agree- 
nifiit  between  thf  p.irtifs  entered  a  decree  dismissing  the  suit  and  decreeing 
that  certain  deeds  prepared  in  accordance  with  the  agreement  be  placed  in  tlu> 
clerk's  hands  to  be  delivered  to  the  several  grantees  when  duly  executed. 
the  lapse  of  thirteen  years  plaintiff  might  make  a  motion  to  coin|--l  the  execu- 
tion of  the  deeds  as  agreed  on,  and  jurisdiction  to  enforce  execution  was  not 
lost  by  the  entry  of  the  judgment  of  dismissal.  Haynie  v.  McAnally,  27  S.  W. 
Rep. 

»  R.  a  1339. 

'Smithwick  v.  Kelly,  79  T.  564  (15  S.  W.  Rep.  486);  Pierson  v.  Hammond,  28  T. 
>-,. 

« Henry  v.  Moore,  1  App.  C.  C..  §  882;  Lockridge  v.  Baldwin.  20  T.  807. 

»  Henry  v.  M. « u ,-.  1  App.  C.  C.,  g  880.     It  is  not  a  valid  objection  to  the  admis- 
hibility  of  a  judgment  in  evidence  as  a  link  in  a  chain  of  title  to  land  that  it 
dir.-.-tsthe  execution  to  be  levied  upon  the  "effects  "of  the  defendant    Un- 
«-d  by  the  context,  the  w.  ts"  is  generally  li«  1,1  t<>  include  only  per- 

sonal property;  but  no  distinction  could  properly  have  been  made  by  the  court 
rendering  the  judgment  between  real  and  personal  property,  as  both  were  equally 
subject  to  the  debt,  and  it  was  "not  necessary  for  the  judgment  to  define  what 
property  was  to  be  levied  on,  further  than  to  indicate  that  it  was  to  be  satisfied 
put  of  the  property  of  the  defendant  Horton  v.  Garrison.  1  Civ.  App.  81  (20 
8.  W.  Rep.  773). 


.596  JUDGMENTS.  [§  634. 

When  a  judgment  declares  the  rights  of  the  respective  parties, 
the  court  may  subsequently  direct  such  process  or  make  such  orders 
as  may  be  necessary  to  carry  its  judgment  into  execution.1 

Judgments  of  the  supreme  court  and  courts  of  civil  appeals  are 
enforced  by  the  proper  process  issued  thereon  by  the  clerk  of  the 
lower  court,  on  receipt  of  the  mandate,  without  any  further  order 
or  decree  by  the  lower  court.2 

§  634.  Foreclosure  of  liens. 

Judgments  for  the  foreclosure  of  mortgages  and  other  liens  are 
that  the  plaintiff  recover  his  debt,  damages  and  costs,  with  a  fore- 
closure of  the  plaintiff's  lien  on  the  property  subject  thereto,  and 
(except  in  judgments  against  executors,  administrators  and  guard- 
ians) that  an  order  of  sale  shall  issue  to  the  sheriff  or  any  constable 
of  the  county  where  such  property  may  be,  directing  him  to  seize 
and  sell  the  same  as  under  execution,  in  satisfaction  of  the  judg- 
ment; and  if  the  property  cannot  be  found,  or  if  the  proceeds  of 
such  sale  be  insufficient  to  satisfy  the  judgment,  then  to  make  the 
money,  or  any  balance  thereof  remaining  unpaid,  out  of  any  other 
property  of  the  defendant,  as  in  case  of  ordinary  executions.3 

A  judgment  decreeing  the  sale  of  land,  upon  which  a  vendor's 
lien  is  foreclosed,  and,  in  case  the  proceeds  arising  from  such  sale 
are  insufficient  to  discharge  the  judgment,  that  execution  issue  for 
the  balance,  is  correct.4  The  judgment  should  order  the  surplus 
proceeds  of  the  sale  to  be  paid  to  the  purchaser  from  the  vendee.5 

The  judgment  foreclosing  a  mortgage  must  follow  the  statute, 

i  Smith  v.  Miller,  66  T.  74  (17  S.  W.  Rep.  399).  This  was  a  suit  for  the  specific 
performance  of  a  verbal  contract  for  purchase  of  land.  Judgment  was  rendered 
in  favor  of  the  plaintiffs  for  the  land,  and  required  plaintiffs  to  pay  money  to  the 
defendants,  but  gave  no  execution  for  its  collection.  On  appeal  the  judgment 
was  affirmed,  and  the  court  say  that  if  the  plaintiffs  fail  to  pay  as  directed  the 
defendants  may  ask  and  have  all  orders  necessary  to  their  protection. 

Where  the  judgment  is  for  plaintiff  in  a  suit  to  establish  a  lost  certificate  of 
stock  transferable  by  indorsement,  the  judgment  should  provide  for  ample  in- 
demnity to  the  company,  and  the  cause  should  remain  on  the  docket  until  from 
lapse  of  time  or  otherwise  the  risk  of  the  company  has  ceased.  Galveston  City 
Co.  v.  Sibley,  56  T.  269. 

*R  S.  983, 1035. 

3R.  S.  1340;  Pfeuffer  v.  Wilderman,  1  App.  C.  C.,  §  1172. 

4  Alf  ord  v.  Wilson,  62  T.  484  The  decree  should  direct  a  sale  of  the  land  in 
the  county  in  which  the  land  is  situated.  Dalton  v.  Rainey,  75  T.  516  (13  S.  W. 
Rep.  34). 

When  a  vendor's  lien  exists  upon  a  tract  of  land  and  the  vendee  has  sold  parts 
of  the  land  for  cash  to  purchasers  with  notice,  upon  a  foreclosure  of  the  lien 
against  the  maker  of  the  note  and  his  vendees  of  parts  of  the  land  the  decree 
should  provide  for  the  sale  first  of  that  part  of  the  land  owned  by  the  original 
vendee,  and  next  in  inverse  order  of  the  time  of  the  several  purchases  of  the 
land  by  the  subvendees.  Krause  v.  Pope,  78  T.  478  (14  S.  W.  Rep.  616). 

*  Llano  Imp.  &  F.  Co.  v.  May,  24  S.  W.  Rep.  40. 


§§  635-637.]  JUDGMENTS. 

whether  it  be  a  mortgage  of  personalty  or  of  realty.1    It  has  long 
been  the  established  practice,  that,  when'  the  plaintiff  has  a  mort- 
gage upon  land,  he  may,  in  the  first  instance,  as  between  himself 
and  the  mortgagor,  or  a  subsequent  purchaser  with  notk-f,  obtain 
both  a  personal  judgment  against  the  mortgagor  and  a 
foreclosure;  this  is  the  practice  indicated  l.\  the  statute.2     ^ 
a  judgment  is  rendered  against  an  administrator  foreclosing  a  mort- 
gage given  by  his  intestate,  the  judgment  must  be  certified  to  the 
county  court  and  the  property  must  be  sold  by  the  admini>' 
under  proper  order  of  the  court.     A  sale  by  the  sheriff  as  on  exe- 
cution conveys  no  title.* 

§  635.  Writ  of  possession  awarded. 

When  any  order  foreclosing  a  lien  upon  real  estate  is  made  in 
a  suit  having  for  its  object  the  foreclosure  of  such  lien,  such  - 
has  the  force  and  effect  of  a  writ  of  possession  as  between  the 
parties  to  the  suit  and  any  person  claiming  under  the  d. 
by  any  right  acquired  pending  the  suit,  and  the  court  m 
rect  in  the  judgment  providing  for  the  issuance  of  the  order;  and 
it  is  the  duty  of  the  sheriff  or  other  officer  executing  the  order  of 
sale  to  proceed  by  virtue  of  such  order  to  place  the  purchaser  of 
the  property  in  possession  within  thirty  days  after  th»-  day  of  sale.' 
A  writ  of  possession  returnable  in  ninety  days  is  void  after  the 

ninety  days  have  elapsed.4 

• 

§  636.  Judgments  on  appeal  or  certiorari  from  county  or  justices* 
courts. 

Judgments  on  appeal  or  certiorari  from  a  county  court  sitting  in 
probate  are  certified  to  such  court  for  observance.  Judgments  on 
appeal  or  certiorari  from  a  justice's  court  are  enforced  by  the  count  v 
court.' 

?'  637.  Judgments  against  executors,  etc. 

Where  a  recovery  of  money  is  had  against  an  execu' 

•r  or  guardian,  as  such,  the  judgment  must  state  that  it  is  to  be 

i  Frankel  v.  Byere,  71  T.  808  (9  &  W.  Rep.  160). 

=  Delespine  v.  Campbell.  53  T.  4. 

•Meyer^  .68  T.  466  (5  &  W.  Rep,  66);  Emmons  %  n.  W 

In  giving  judgment  against  two  mortgagor*,  the  estate  of  one  UMNK  in  probate, 
all  propt-n  :n   th.-  mortgage  was  onl.-r.-.l  t<-  !*•  *>l,l.     It  w.i- 

unless  it  appears!  that  t  h-  mortgage  was  a  partnership  tnu 
partnership  pmjHTty.  only  th.-  int.-r.-st  of  th.-  mortgagor  living ni. 
ordered  sold,  and  th.-  Judgment  should  have  beet.  ^xmrt 

for  observance.     Watson  v.  Blym.-r  Mfg.  Co..  W  T.  558  (2  a  W.  Rep,  358). 

« R.  a  1341.  In  Voigtlandrr  v.  Kr..t/.«>.  -W  T.  2*6.  decided  before  the  adoption 
of  the  above  statute,  a  writ- of  assistance  was  awarded  on  application  by  one 
entitled  to  possession  of  l:m  I  un.l 

»Reagan  v.  K  A  pp.  H   II  s.  \\     Rep.  427). 

•aasao, 


598  JUDGMENTS.  [§  638. 

paid  in  the  clue  course  of  administration.  No  execution  issues  on 
such  judgment.  It  must  be  certified  to  the  county  court  sitting  in. 
probate,  to  be  enforced  in  accordance  with  law.  A  judgment  against 
an  executor  appointed  and  acting  under  a  will  dispensing  with  the 
action  of  the  county  court  in  reference  to  the  estate  is  enforced 
against  the  property  of  the  testator  in  the  hands  of  such  executor 
by  execution  as  in  other  cases.1  It  is  error  in  rendering  judgment 
against  an  administrator  to  order  the  issuance  of  execution.2 

§  638.  Final  judgments. 

A  judgment  is  final  which  disposes  of  the  whole  matter  in  con- 
troversy, as  to  all  parties ; 3  it  awards  the  judicial  consequences 
which  the  law  attaches  to  the  facts,  and  determines  the  subject- 
matter  of  controversy  between  the  parties.4  The  rules  for  deter- 
mining the  finality  of  judgments  at  law  are  simpler  and  of  easier 
application  than  those  which  apply  to  decrees  in  equity.  The  cases 
decided,  it  is  said,  range  themselves  into  classes  in  which  the  inter- 
locutory character  of  a  decree  will  result  from  a  partial  or  incom- 
plete disposition  made  as  to  all  who  are  parties  to  the  suit,  or,  it 
may  be,  from  the  incomplete  determination  of  all  the  matters  which 
are  in  controversy  under  the  pleadings;  or  it  may  result  from  the 
indecisiveness  of  the  judgment  rendered  in  respect  to  the  merits  of 
the  suit,  because  of  its  relating  to  a  matter  merely  collateral  to  the 
merits  of  the  subject  of  controversy.  In  all  and  in  any  of  these 
supposed  instances  thfere  would  remain  the  necessity  for  further  ac- 
tion by  the  court,  to  be  shown  by  the  record,  in  order  to  settle  and 
determine  the  whole  of  the  case.  The  judgment  must  in  substance 
show  intrinsically,  and  not  inferentialiy,  that  the  matters  in  the 
record  have  been  determined  in  favor  of  one  of  the  parties,  or  that 
the  rights  of  the  parties  in  litigation  are  adjudicated.5 

!R.  S.  1344,  1345.  The  issues  concluded  by  the  judgment  cannot  be  r?opened 
in  the  county  court,  the  duties  of  that  court  being  only  in  relation  to  classifica- 
tion and  payment.  Paxton  v.  Meyer,  67  T.  96  (2  S.  W.  Rep.  817).  See  Willis  v. 
Bryan,  33  T.  429;  Robbins  v.  Walters,  2  T.  130.  As  to  independent  executors, 
see  McKie  v.  Simpkins,  1  App.  C.  C.,  §  282. 

2Mott  v.  Ruenbuhl,  1  App.  C.  C.,  §  603. 

3  Linn  v.  Arambould,  55  T.  611;  Lay  v.  Bellinger,  1  App.  C.  C.,  §  24;  Martin  v. 
Crow,  28  T.  614;  Simpson  v.  Bennett,  42  T.  241;  Mo.  Pac.  Ry.  Co.  v.  Houston 
Flour  Mills  Co.,  2  App.  C.  C.,  g  573;  Cannon  v.  Hemphill,  7  T.  184. 

4  Hanks  v.  Tompson,  5  T.  8;  West  v.  Bagley,  12  T.  34 

5  Linn  v.  Arambould,  55  T.  611.    This  was  a  suit  to  cancel  deeds  on  account 
of  fraud  in  their  procurement;  the  judgment  was  for  the  plaintiff,  directing  a 
•writ  of  restitution  and  execution  for  costs,  but  reciting  that,  inasmuch  as  a  new 
trial  had  been  granted  in  regard  to  the  issue  raised  by  the  pleadings  ad  to  the 
amount  of  the  purchase-money  paid  by  defendants,  the  judgment  or  decree  can- 
celing the  deeds  should  be  held  in  abeyance  until  that  issue  should  be  deter- 
mined.    It  was  held:   (1)  There  could  be  no  final  judgment  from  which  an 
appeal  or  writ  of  error  could  be  prosecuted,  until  all  the  issues  as  to  all  the 


JUDGMENTS. 

1'ntil  tlicre  is  a  judgment  which  leaves  nothing  to  be  fur 
litigated  in  the  case,  unless  it  be  something  which  relates  to  the 
execution  of  the  judgment,  there  is  no  final  judgment,1     Th«-  judg- 
ment must  contain  the  decision  or  sentence  of  the  law  pn.m.i 
by  the  court  upon  the  matter  contained  in  tin-  that  tho 

clerk  has  been  ordered  to  a>sess  the  damages  is  not  sufficient.-     It 
o.iitaiu:  (1)  The  facts  judicially  ascertained,  witii  the  manner 
-eertaining  them  entereil  of  record.     u'»  The  rec<>:  iara- 

-  of  the  court,  pronouncing  the  legal  consequences  of  the  : 
thus  judicially  ascertained.3 

A  judgment  of  <li-mi>sal  maybe  a  final  judgment.4    A  gei:- 
demurrer  which  admits  the  facts  stated  by  the  plaintiff,  when 
tained  by  the  judgment  of  the  court,  is  as   conclusive  of  the  cause 
tion  as  if  the  plaintiff  had  proved  them   and  a  judgment  had 
rendered  against  him.'1 

The  judgment  must  determine  the  controversy  as  to  all  the  parties,* 
including  an  intervener,7  or  a  deceased  partner  or  his  repre>< 

parties  had  been  finally  adjudicated  in  the  district  court.  c.M  No  order  or  de- 
cree which  does  not  preclude  further  proceedings  in  the  case  in  the  court  below 
can  be  regarded  as  final.  (3)  The  defendants  having  prayed  for  a  condemna- 
tion sale  of  the  land  to  satisfy  their  claim  for  purchase-money,  and  that  issue 
MHIK  undisposed  of,  the  judgment  was  interlocutory.  from  which  no  ap- 
peal could  be  taken.  (4)  The  cause  should  proceed  in  the  district  court  as 
though  no  trial  had  occurred.  (5)  The  district  court  should  allow  the  case  to 
be  reinstated  on  its  docket  after  notice.  See  Scott  v.  Kurt  on,  6  T.  323. 

In  Mo.  I 'a,-,  lly.  (  ...  v.  Houston  Flour  Mills  Co.,  2  App.  CL  C 
that,  for  the  purpose  of  determining  whether  an  appeal  bond  was  filed  m  • 
the  judgment  overruling  a  motion  for  a  new  trial  is  tin-  final  judgment  in 
anil  that  the  judgment  previously  rendered  is  only  r/uaxi-final. 
» Tex.  &  Pac.  Ry.  Co.  v.  Railway  Co.,  T:.  S.  W.  Rep.  977). 

-  illis,  60  T.  576. 

3  Fitzgerald  v.  Evans,  53  T.  461.     A  judgment  of  revivor,  which  simply  recites 
and  verities  the  rendition  of  the  former  judgment,  and  makes  no  provision  for 
-nance  of  execution  to  enforce  the  collection  of  the  amount  formerly 
ascertained  to  be  due,  is  not  a  final  judgment 

i  ker  v.  Spencer,  61  T.  155;  Ewing  v.  Cohen,  68  T.  482;  Watts  v.  Overs; 
\V.  I;.  |, .  TIIJ  ,     Km    ,  ;t  dismissing  an  injunction  - 

:on  is  not  a  final  judgment    Wagn<-r  v.  Kdmiston,  1  A  pp.  ' 
final  judgment  cannot  be  rendered  in  vacation  or  at  chambers.    Aiken  \ 
rpU,87T.  7& 

» Bomar  v.  Parker,  68  T.  435  (4  a  W.  Rep.  599).  It  is  held  that  the  declara- 
.ntaine.l  in  the  opinion  delivered  in  Hughes  v.  Lane,  83  T.  838,  to  the  ef- 
uit  a  judgment  on  demurrer  is  not  oOOOlMtat*  WM  »"t  necessary  to  the 
>n  of  that  case,  and  cannot  be  maintained  either  on  or  on  au- 

thority. 

•  L  &  O.  N.  Ry.  Co,  v.  Smith  Co.,  58  T.  7 1. 
:  Linn  v.  ArambouM.  V.  T.  611. 

'  Hensley  v.  Bagdad  Sash  Fa.  t.,ry  Co..  1  App.  r.  ('..  J-  T'.N);  Stephen- 
nant.  1  App.  C'.  '  I  .ili'-n-t.-rne  \  nent 

irtition  stiit  1^  not  final  wli.-re  tli,   nil. -rest  of  a  party  plair.- 
life  interest  in  a  part  of  the  land  is  not  pasted  upon.    Nor  is  the  judgment  aided 


600  JUDGMENTS.  [§  638. 

But  any  judgment  is  final  which  disposes  of  the  matters  in  contro- 
versy as  to  all  the  parties  to  the  suit.1 

A  judgment  for  costs  which  does  not  dispose  of  the  subject-mat- 
ter of  the  suit  is  not  final.2  A  judgment  that  the  plaintiffs  take 
nothing  by  their  suit,  and  that  the  defendants  go  hence  without 
day,  etc.,  proceeding  to  dispose  of  the  costs,  is  a  complete  disposi- 
tion of  the  cause.3 

by  a  disclaimer  filed  subsequent  to  the  judgment  by  the  party  claiming  such 
life  estate  assigning  and  filing  his  transfer  in  the  record,  transferring  his  right 
to  his  daughter,  who  was  a  party.  Mignon  v.  Brinson,  74  T.  18  (11  S.  W.  Rep. 
903). 

1  G.,  C.  &  S.  F.  Ry.  Co.  v.  Ft  W.  &  N.  O.  Ry.  Co.,  2  S.  W.  Rep.  199.    In  a  suit 
against  several,  when  the  judgment  of  the  court  sets  aside  a  verdict  as  to  one 
or  more,  and  as  to  them  continues  the  cause,  a  judgment  entered  against  an- 
other defendant  as  to  whom  the  verdict  is  approved  is  a  nullity.    There  can  be 
but  one  final  judgment.    It  matters  not  how  many  defendants  there  may  be,, 
there  can  be  no  final  judgment  against  one  until  the  case  is  finally  disposed 
of  as  to  all.    A  new  trial  granted  to  one  operates  as  to  all.     Martin  v.  Crow,  28 
T.  614;  Hulme  v.  Janes,  6  T.  242;  Wooters  v.  Kauffman,  67  T.  488  (3  S.  W.  Rep. 
465). 

In  a  suit  against  two  defendants  a  judgment  in  favor  of  the  plaintiff  and 
against  one  of  the  defendants,  the  record  not  showing  any  disposition  of  the 
case  as  to  the  other,  is  not  a  final  judgment  from  which  an  appeal  will  lie.  Mo. 
Pac.  Ry.  Co.  v.  Scott,  78  T.  360  (14  S.  W.  Rep.  791). 

A  judgment  in  trespass  to  try  title,  in  favor  of  plaintiffs  and  against  two  of 
three  defendants,  without  mentioning  the  third,  is  not  final.  Masterson  v.  Will- 
iams, 11  S.  W.  Rep.  531.  A  judgment  against  one  of  three  defendants,  the  record 
failing  to  disclose  whether  the  other  two  were  served,  made  a  voluntary  appear- 
ance, or  what  action  was  taken  regarding  them,  is  not  final.  Rodrigues  v.  Tre- 
vino,  54  T.  198.  When  suit  is  instituted  against  two  or  more,  in  which  judgment 
is  rendered  in  favor  of  all  the  defendants  except  one,  who  is  not  referred  to  in 
the  judgment,  the  judgment  is  not  final,  no  order  having  been  entered  dismiss- 
ing the  cause  as  to  the  defendant  not  mentioned  in  the  judgment.  Whitaker 
v.  Gee,  61  T.  217;  Bradford  v.  Taylor,  64  T.  169. 

When,  in  a  suit  involving  the  claims  of  a  number  of  parties,  judgment  is  ren- 
dered in  favor  of  one  and  against  another  on  one  of  the  issues  involved,  and. 
from  that  portion  of  the  judgment  the  complaining  party  takes  no  appeal  and 
assigns  no  error  based  on  the  judgment  as  to  that  issue,  the  judgment  of  the 
court  below  will  be  treated,  in  so  far  as  it  determined  the  particular  issue,  as 
final.  Lovenberg  v.  The  Bank,  67  T.  440  (2  S.  W.  Rep.  874). 

2  Eastham  v.  Sallis,  60  T.  576.    See  Graves  v.  Campbell,  74  T.  576  (12  S.  W.  Rep. 
238). 

3  Sydec  v.  Duran,  2  U.  C.  304.    A  judgment  dissolving  a  temporary  injunction, 
and  for  costs,  but  not  otherwise  disposing  of  the  subject-matter  of  litigation,  is 
not  a  final  judgment,  and  will  not  support  an  appeal.    I.  &  G.  N.  Ry.  Co.  v. 
Smith  County,  58  T.  74. 

A  temporary  injunction  was  granted.  The  defendant  answered  under  oath, 
denying  the  material  allegations  in  the  petition;  also  in  reconvention  sought  to 
recover  damages  for  the  wrongful  suing  out  of  the  injunction.  A  motion  to 
dissolve  was  sustained.  The  plaintiff  then  waived  its  right  to  have  the  cause 
tried  upon  the  merits,  and  asked  that  final  judgment  be  entered,  which  the 
court  refused.  Plaintiff  then  asked  that  its  petition  be  dismissed,  which  was 
done,  and  costs  adjudged  to  defendants,  who  also  at  the  time  brought  the  atten- 
tion of  the  court  to  the  fact  that  they  desired  a  hearing  upon  the  matters  in, 


§639.]  JUDGMENTS. 

A  judgment  which  does  not  dispose  of  all  the  defendants  nor  of 
all  the  subject-matter  of  the  controversy  does  not  deprive  the  « 
of  jurisdiction  to  render  a  final  judgment  at  a  subsequent 

?'  630.  Interlocutory  judgments. 

An  interlocutory  judgment  is  one  given  in  the  progress  of  a  cause 
upon  some  plea,  proceeding,  or  default,  which  is  only  intermediate, 
and  does  not  finally  determine  or  complete  the  suit.-  It  is  the  sub- 
stance, and  not  the  form  or  the  shadow,  which  is  regarded  in  deter- 
mining whether  a  judgment  is  final;  a  judgment  final  in  form. 
which  is  set  aside,  either  rightly  or  erroneously,  becomes  an  i. 

their  reconversion.  No  disposition  having  been  made  of  the  plea  in  reconven- 
tion,  it  was  held  there  was  no  final  judgment  Tex.  &  Pac,  Ry.  Ca  v.  Railway 
Co.,  75  T.  82  (12  S.  W.  Rep.  9771 

A  judgment  for  costs,  without  an  order  disposing  of  the  controversy,  to  not  & 
final  judgment  Green  v.  Banks,  24  T.  ">22:  Neyland  v.  White,  25  T.  319;  Holt 
v.  Wood,  23  T.  474;  Fitzgerald  v.  Fitzgerald,  21  T.  415.  When  the  record  recited 
that  plaintiff  took  a  nonsuit  and  afterwards  that  he  moved  the  court  to  set 
aside  the  nonsuit  taken  in  this  case,  etc.,  which  motion  was  overruled,  n: 
dered  that  the  plaintiff  pay  all  costs,  etc..  but  there  was  no  judgment  that  the 
plaintiff  be  nonsuited,  or  that  the  suit  be  dismissed,  it  was  held  not  to  be  A  final 
judgment  Hanks  v.  Thompson,  5  T.  6:  Scott  v.'  Burton,  8  T.  322;  Ham  < 
Metz,  7  T.  177.  "This  day  came  the  plaintiff  by  his  attorney, and  acknowledge* 
to  have  received  the  full  amount  sued  for;  it  is  therefore  considered  by  the  court 
that  the  plaintiff  have  and  recover  from  said  defendants  all  costs  in  their  behalf 
expended,  for  which  execution  may  issue:"  held  not  to  be  a  final  judgment 
Martin  v.  Wade,  22  T.  224.  The  following  entry  was  held  to  be  a  final  judp 
although  informal:  "  And  now  come  the  parties  and  announced  ready  for  trial, 
and  defendant  moves  the  court  to  dismiss  plaintiffs'  (their)  cause,  which  motion 
is  by  the  court  sustained,  and  said  cause  dismissed;  to  which  ruling  of  th. 
plaintiff  excepts.  It  is  therefore  considered  and  adjudged  by  the  .-..art  that  said 
defendant  do  have  and  recover  of  said  plaintiff  all  of  the  costs  in  their  behalf 
expended,  to  be  taxed,  for  which  let  execution  issue."  Hagood  v.  Grimes,  24  T. 
15.  There  was  a  judgment  establishing  the  right  of  plaintiff  to  land,  debts,  etc.. 
embraced  in  the  report  of  auditors,  and  decreeing  that  the  defendants  should 
convey  the  land,  etc.,  but  reserving  for  the  further  consideration  of  the  court, 
at  its  next  term,  so  much  of  the  report  as  finds  $1,151.43  due  plaintiff,  and  order- 
ing costs  to  be  paid  equally  by  both  parties.  Held  to  be  final  Merle  v.  Andrews, 
>0.  And  a  judgment  ascertaining  the  rights  of  parties  in  land,  and  ap- 
pointing commissioners  to  divide  the  land  in  accordance  with  the  judgment 
and  make  due  return  at  the  next  term  of  the  court,  is  final  Cannon  r.  Hemp- 
hill,  7  T.  1*4;  Whit.-  v.  Mitchell,  69  T.  164.  And  it  is  not  lens  final  because  the 
disposition  of  costs  to  reserved  until  after  the  report  of  the  commissioners,  Mo 
Farland  v.  Hall,  17  T.  676. 

A  judgment  which  on  its  face  purports  to  hare  been  rendered  on  a  trial  upon 
the  merits  cannot  at  a  subsequent  term  be  affected  by  parol  evidence  sh< 
that  it  was  not  after  trial  on  th.-  in. Tits,  but  was  entered  by  consent.     I 
judgment  declared  the  respective  interests  of  the  parties  to  the  suit  in  land  and 
decreed  its  partition,  it  was  the  duty  of  the  court  to  act  on  it  as  a  conclusive 
ascertainment  of  the  rights  of  the  parties,  and  to  effect  partition  as  required  by 
the  judgment     Petrucio  v.  «eaniun.  76  T.  639  (13  a  W.  Rep.  800) 

i  Reed  v.  Liston,  8  Civ.  A  pp.  lia 

*3  Black.  Com.  396;  Kennedy  v.  Morrison,  81  T.  907. 


002  JUDGMENTS.  [§  640. 

iocutory  order,  although  it  may  be  the  subject  of  revision  at  some 
time.  Such  orders,  judgments  and  decrees  belong  to  that  class  which 
leaves  still  to  be  determined  the  merits  of  the  controversy.1 

An  interlocutory  judgment  will  not  support  an  action.2  Where 
statutes  provide  for  interlocutory  judgments,  and  for  the  terms  on 
•which  such  judgments  shall  be  granted,  the  right  is  not  subject  to 
the  discretion  of  the  court.3 

The  court  has  absolute  control  of  all  interlocutory  orders  and 
judgments  in  every  case  until  the  final  judgment.4  An  interlocutory 
judgment  by  default  is  under  the  control  of  the  court,  and  may  be 
set  aside  for  good  cause  and  the  party  permitted  to  answer.5  And 
it  seems  that  an  interlocutory  judgment  which  adjudges  certain 
rights  to  one  of  the  parties  may  be  vacated  at  a  subsequent  term.6 

§  640.  Presumptions  in  aid  oi  judgments. 

As  a  general  rule,  the  law  will  presume  that  a  domestic  court  of 
general  jurisdiction  had  power  to  make  a  judgment  rendered  by  it, 
unless  the  contrary  is  shown  by  the  record.  Such  presumption  will 
not  be  indulged  in  favor  of  the  judgment  of  a  court  of  limited  or 
special  jurisdiction,  but  the  facts  necessary  to  the  exercise  of  its 
jurisdiction  must  affirmatively  appear  on  the  record.  All  the  courts 
of  Texas  are  limited  in  their  jurisdiction ;  but  courts  created  by 
•express  constitutional  provision,  with  general  and  exclusive  powers 
to  hear  and  determine  all  controversies  within  their  particular  judi- 
cial sphere,  cannot  be  said  to  be  courts  of  limited  or  special  juris- 
diction within  the  meaning  of  the  general  rule  above  given.7  In 
the  absence  of  proof  to  the  contrary,  there  is  always  a  presump- 
tion in  favor  of  the  validity  of  a  judgment  rendered  by  a  court  in 
:a  case  within  its  jurisdiction.  The  presumption  is  that  the  court 
has  done  no  wrong;  but  presumptions  are  indulged  only  in  the 
absence  of  proof,  not  against  it.8  When  a  domestic  judgment  is 
attacked  collaterally,  every  presumption  will  be  indulged  in  favor 
•of  the  jurisdiction  of  the  court  and  the  validity  of  its  judgment; 
and  where  it  docs  not  otherwise  appear  it  will  be  presumed  that 
the  court  ascertained  all  the  facts  necessary  to  its  jurisdiction.  To 

iLinn  v.  Arambould,  56  T.  611. 

2Ledyard  v.  Brown,  39  T.  402. 

8  Peck  v.  Moody,  33  T.  84. 

4  Hamilton  v.  Pleasants,  31  T.  638. 

'Ledyard  v.  Brown,  27  T.  393,  and  39  T.  402. 

6  Rogers  v.  Watrous,  8  T.  62;  Cannon  v.  Hemphill,  7  T.  184. 

"  Williams  v.  Ball,  52  T.  603. 

^  8Sharpleigh  v.  Cooper,  1  App.  C.  C.,  g§  56,  57.  Where  the  parties  and  the  sub- 
ject-matter are  within  the  jurisdiction  of  a  court,  it  will  be  presumed  that  the 
•court  has  exercised  jurisdiction  over  them  rightfully.  It  will  also  be  presum?d, 
when  the  jurisdiction  is  collaterally  brought  in  question,  that  the  prerequisites 
to  confer  it  had  been  complied  with.  Acres  v.  Tate,  1  App.  C.  C.,  §  122& 


§641.] 

attack  the  jurisdiction  it  must  affirmatively  appear  that  the  facts 
essential  to  it  did  not  in  fact  exist.1 

Where  ;i  person  has  not  been  served  with  process,  and  has  no 
notice  of  the  suit,  and  a  judgment  has  been  rendered  against  him 
when  he  has  a  good  det'en-.-.  he  may  bring  a  suit  to  annul  the  judg- 
ment, and  may  impeach  the  shei-itl's  return  without  beini:  m\ 
to  show  that  the  plaintiff  connived  at  or  procured  the  false  return, 
or  had  any  connection  therewith.  It  is  sufficient  that  ,rn  is 

n«>t  true  in  fact,  and  that  there  is  a  good  defense.     This  ruling  is 
made  in  view  of  the  fact  that  there  is  high  authority  aga. 

?'  641.  Validity  of  judgments;  collateral  attack. 

Judgments  are  void  and  voidable.  A  void  judgment  is  an  abso- 
lute nullity,  and  may  be  so  treated  by  any  court  in  anv  suit  or  ju- 
dicial proceeding:3  that  is,  it  is  subject  to  collateral  attack,  but  to 
render  it  so  the  invalidity  must  appear  affirmatively  ujx>n  the  record. 
If  it  does  not  thus  appear,  the  judgment  is  not  void,  but  wtll  be  held 
valid  and  binding  upon  the  party  against  whom  it  until 

its  nullity  is  declared  in  a  suit  brought  for  that  purpose.     Such  a 
judgment  is  said  to  be  voidable.*     In  nume?  >  of  the 

highest  and  mo>t  distinguished  courts  it  is  held  that  the  judg" 
of  a  court  of  general  jurisdiction  cannot  be  held  to  l>e  void  unless 
the  record  shows  that  the  court  was  without  power  to  render  the 
!  rnent.     This  may  be  said  to  be  the  rule,  but  the  courts  of  this 
recognize  at  least  one  exception  to  this  rule,  vi/.,  that  a  judg- 
ment ordering  administration  upon  the  estate  of  a  living  man  is  a 
nullity,  although  the  proceedings  are  regular,  and  there  is  nothing 
upon  the  record  showing  or  suggesting  that  the  owner  of  the  prop- 
erty upon  which  administration  is  granted  is  living.* 

If  the  court  had  jurisdiction  of  the  subject-matter,  it  will  be  pre- 
sumed that  jurisdiction  was  properly  acquired  over  the  person  of 
the  defendant,  there  being  nothing  in  the  record  to  the  coiitr 
There  seems  to  be  no  well-considered  opinion  where  the  court  has 

» Hardy  v.  Beaty.  84  T.  562  (19  a  W.  Rep.  7  Ca  r.  Gay.  8* 

T.   -.71  .-.'«  &  W.  Rep.  599);  Brockenbor...^  T.  493:  Chambers  r. 

Cannon,  •'..  i  it.  I.  v.  lioyer,  51  T.  33rt:  H:it<  h  %    !>•>  la  (Una,  22  T.  178. 

»Kempner  v.  Jordan.  7  Civ.  App.  275.  See  the  authorities  cited  The  ques- 
tion was  noticed  in  Randall  v.  Collins.  58  T.  2:11.  »>ut  not  «!••. 

»Caplen  v.  Compt-.n.  '.  <  'iv.  App.  HO  .27  s.  W.  K.-p. 
888;  Murchiaon  v.  Whit.-,  :>4  T.  7^.  Stewart  v.  Anderson,  70  T.  588  (8  &  W.  Rep, 

*  Murchison  v.  Whit.-.  54  T.  78;  Ouilford  v.  Love,  49  T.  715:  Williams  v.  Ball, 

•;<>:{;   W.-ik.-ii.-M  v.  \pp.  C.  C,  86'.'  :   v.  Hr.-. 

540;  Odle  v.  Frost.  59  T.  ft* I:  H.-II.!- 

»Caplen  v.  Comj  •  \pp.  II"    .7  s.  \v.  Rep.  24). 

•Fitch  v.  B<.y,-r.  51  T.  :£W:  I-i«  l.-r  r,  Whit.-.  27   I  .ilford  v.  Love,  49  T. 

715:  Hardy  v. 'Beaty,  94  T.  562  (19  3.  W.  Rep.  778);  Miktska  T.  Blum,  68  T.  44; 
Kramer  v."  Breedlove,  3  S.  W.  Rep.  561. 


604  JUDGMENTS.  [§  642. 

acquired  jurisdiction  of  the  subject-matter  of  the  suit  and  of  the 
person  of  the  defendant  in  which  it  has  been  held  that  the  judg- 
ment rendered  was  subject  to  collateral  attack  for  errors  of  law  ap- 
parent upon  the  face  of  the  record.  Such  erroneous  decision  is  just 
as  final  and  binding  as  would  be  an  erroneous  decision  on  a  question 
of  fact.1  When,  in  the  exercise  of  lawful  power,  a  court  has  ren- 
dered a  final  judgment,  it  must  be  held  conclusive  between  the  par- 
ties thereto,  except  in  a  proceeding  appellate  in  character,  unless 
some  ground  other  than  that  it  is  probably  unjust  is  shown,  which, 
under  the  settled  rules  of  law,  is  deemed  sufficient  to  authorize  a 
court  of  equity  to  re-examine  the  case.2 

Fraud  perpetrated  by  a  party  in  procuring  a  judgment  does  not 
render  it  absolutely  void,  but  is  only  cause  for  having  it  declared 
void,  in  a  proceeding  instituted  for  that  purpose  and  in  proper  time,, 
as  between  parties  and  privies;  a  different  rule  applies  to  strangers 
to  the  proceeding,  who  may  collaterally  attack  a  judgment  procured 
by  fraud,  whenever  it  is  relied  on  to  affect  their  rights.3 

§  642.  Orders  of  court. 

Litigants  are  charged  with  knowledge  of  the  standing  orders  of 
the  court.  Thus,  where  an  order  is  made  during  the  first  week  of 
the  term  discharging  the  jury  for  the  term,  and  the  parties  by  con- 
sent set  a  case  for  trial  during  the  second  week,  they  cannot  com- 
plain if  the  court  proceeds  with  the  case  without  a  jury.4  A  de- 
fendant once  brought  properly  into  court  by  citation  is  chargeable 
with  notice  of  all  orders  made  by  the  court  regarding  the  cause.* 
The  rule  also  applies  to  an  intervener.6 

It  is  within  the  power  of  the  court  to  set  aside  an  order  improp- 
erly made  at  a  former  day  of  the  same  term ;  and  if  the  action  of 
the  court  would  be  revised  in  any  case,  it  would  be  done  only  in  a 
case  in  which  manifest  injury  or  injustice  had  been  done.8  The  rule 
is  that  the  orders  of  a  court  are  under  its  control  until  the  end  of 
the  term  at  which  they  were  made.9 

*  Bordages  v.  Higgins,  1  Civ.  App.  43  (19  S.  W.  Rep.  446:  20  S.  W.  Rep.  184,  726); 
Odle  v.  Frost,  59  T.  684.    A  void  judgment  is  always  subject  to  collateral  at- 
tack, and  it  can  derive  no  legal  sanction  from  lapse  of  time.    Paul  v.  Willis,  69- 
T.  261  (7  S.  W.  Rep.  357);  Martin  v.  Cobb,  77  T.  544  (14  S.  W.  Rep.  162). 

2  Ham  v.  Phelps,  65  T.  592;  Johnson  v.  Templeton,  60  T.  238;  Morris  v.  McKee,. 
61  T.  413. 

'Murchison  v.  White,  54  T.  78;  Fleming  v.  Seeligson,  57  T.  524;  Mikeska  v., 
Blum,  63  T.  44. 

<Cole  v.  Terrell,  71  T.  549  (9  S.  W.  Rep.  668). 

»  Perkins  v.  Wood,  63  T.  396. 

*  Rainbolt  v.  Marsh,  52  T.  246. 

'  Hartley  v.  Conn,  4  Civ.  App.  299  (23  S.  W.  Rep.  382) 

8  Williams  v.  Huling,  43  T.  113.  In  this  case  a  defendant  withdrew  his  an- 
swer, and  afterwards  an  order  was  made  dismissing  the  case,  and  it  was  held 
that  the  defendant  could  not  complain  of  a  subsequent  order  reinstating  the  case- 

•Beaton  v.  Brooking,  1  App.  C.  C.,  §  1041;  Hinzie  v.  Ward,  1  App.  C.  C.,  §  1314. 


CHAPTER  XL. 

CONFESSION  OF  JUDGMENT. 


§  64&  Procedure;  petition  and  affida- 


vit 


644  Of  the  instrument  authorizing 
judgment. 


§  645.  Confession  by  attorney. 

646.  Amount  of  debt  or  damage 

should  be  agreed  on. 

647.  Release  of  errors;  impeachment 


§  643.  Procedure;  petition  and  affidavit. 

Any  person  indebted,  or  against  \\  horn  a  cause  of  action  exists, 
may  without  process  appear,  in  person  or  by  attorney,  and  confess 
judgment  therefor  in  open  court;  but  in  such  case  a  petition  must 
be  filed  and  the  justness  of  the  debt  or  cause  of  action  must  be 
sworn  to  by  the  person  in  whose  favor  the  judgment  is  confessed.1 

A  judgment  by  confession  is  not  erroneous  for  want  of  an  affi- 
davit of  the  justness  of  the  debt,  when  the  defendant  has  been 
served  with  process.  The  provision  requiring  an  affidavit  in  ab- 
sence of  process  was  made  in  the  interest  of  third  parties,  and  its 
object  was  to  prevent  collusive  judgments  upon  fictitious  debts,* 
The  facts  that  the  suit  was  brought  long  before  the  judgment, 
an  answer  was  filed,  and  that  the  judgment  is  the  result  not  only 
of  the  defendant's  admission  of  the  correctness  of  the  demand,  but 
of  his  request  for  time,  show  that  it  was  not  a  judgment  by  con- 
fession within  the  purview  of  the  statute.1  No  am'da\  lired 
where  the  confession  is  under  power  of  attorney,  if  the  defendant 
has  been  served  with  process.4  It  has  been  held  that  the  ahV 
cannot  be  made  by  attorney;5  but  it  is  probable  that  it  might  now 
be  made  by  the  agent  or  attorney  of  the  party  in  whose  favor  tlm 
judgment  is  confessed.'  If  the  judgment  be  entered  without  pro- 

iR.a  134& 

»Chestnutt  v.  Pollard,  77  T.  86  (18  a  W.  Rep.  852);  Flanagan  r.  Kroner.  10  T. 
Schroeder  v.  Knumne.  31  T.  602. 

»Chestnutt  v.  Pollard,  77  T.  86  (13  a  W.  Rep.  8«X 

«Rankin  v.  Filburn,  1  App.  C.  C.,  g  797;  Ludiker  v.  Ratto,  8  App.  G  CL,  g  116. 
\Vh.-re  the  partita  appear  by  their  attorneys  and  agree  to  a  judgment,  there 
being  no  citation  or  answer,  an  affidavit  is  required.  Laudeniale  T.  Ennis  Sta- 
tionery Co.,  24  a  W.  Rep.  884 

A  member  of  a  firm  has  no  authority  to  bind  his  copartners  by  a  confession 
of  judgment  without  their  consent.  Ludiker  v.  Ratto,  3  App.  C.  C.,  §  1 16. 

»  Montgomery  v.  Barnett,  8  T.  14a 


606  CONFESSION   OF   JUDGMENT.  [§§  644,  645. 

cess  and  without  an  affidavit,  it  will  stand  unless  reversed  on  appeal.1 
A  waiver  or  acceptance  of  service  is  effectual,2  but  an  acceptance  or 
waiver  cannot  now  be  authorized  by  the  contract  or  instrument 
sued  on,  or  by  any  other  instrument  executed  before  the  institution 
of  the  suit,  but  must  be  made  after  suit  brought.3 

A  withdrawal  of  the  answer  and  a  judgment  by  nil  dicit  is  equiv- 
alent to  a  judgment  by  confession;4  or  a  judgment  for  plaintiff 
after  answer,  with  a  stay  of  execution.* 

§  644.  Of  the  instrument  authorizing  judgment. 

The  statute  provides  that  confession  of  judgment  shall  not  be  au- 
thorized by  the  contract  or  instrument  sued  on,  or  by  any  other 
instrument  executed  prior  to  the  institution  of  the  proceedings.6  A 
bond  given  to  secure  a  contract  for  the  construction  of  a  building 
in  a  certain  county,  other  than  that  of  the  residence  of  the  obligor, 
stipulated  that  a  suit  for  a  breach  might  be  brought  in  such  county. 
It  was  held  that  the  stipulation  was  not  prohibited  by  the  statute.7 
This  statute  prohibits  stipulations  in  contracts  which  have  hereto- 
fore been  held  valid.8 

§  645.  Confession  by  attorney. 

If  the  judgment  is  confessed  by  attorney,  the  power  must  be  filed 
and  a  recital  of  the  contents  of  the  same  must  be  made  in  the  judg- 
ment.9 Where  the  defendant  has  been  served  with  citation,  and  after 
such  service  executes  a  power  of  attorney  authorizing  his  attorney 
to  appear  and  confess  judgment,  it  is  not  necessary  to  the  validity 
of  the  judgment  that  the  power  of  attorney  should  be  acknowledged 
or  proved  for  record,  or  its  execution  proved,  nor  that  its  contents 
should  be  recited  in  the  judgment.10 

The  power  of  attorney  must  be  on  file  when  the  judgment  is  ren- 
dered.11 Where  the  judgment  recited  that  the  parties  appeared  by 

1  Hopkins  v.  Howard,  12  T.  7. 

2 Flanagan  v.  Bruner,  10  T.  257;  Gerald  v.  Burthee,  29  T.  203. 
»R.  S.  1349. 

«Cartwright  v.  Roff,  1  T.  78;  Graves  v.  Cameron,  77  T.  273  (14  S.  W.  Rep.  59). 
8  Burton  v.  Varnell,  1  T.  635.    The  withdrawal  of  an  answer  after  demurrer 
overruled  is  not  a  confession  of  judgment.    Frazier  v.  Todd,  4  T.  461. 
«R.  S.  1349;  act  1885. 

7  Ft  Worth  Board  of  Trade  v.  Cooke,  6  Civ.  App.  324  (25  S.  W.  Rep.  330). 

8  Grubbs  v.  Blum,  62  T.  426;  Morris  v.  Bank,  67  T.  602  (4  S.  W.  Rep.  246);  Stras- 
burger  v.  Heidenheimer,  63  T.  5;  Mikeska  v.  Blum,  63  T.  44. 

»  R.  S.  1350. 

w  Rankin  v.  Filburn,  1  App.  C.  C.,  §  797. 

11  Grubbs  v.  Blum,  62  T.  426.  A  married  woman  may  execute  a  power  of  attor- 
ney to  confess  judgment,  and  judgment  may  be  rendered  thereon  on  her  appear- 
ance by  attorney  where  the  court  has  jurisdiction  of  her  person  and  of  the 
aubject-matter.  Cordray  v.  City  of  Galveston,  28  S.  W.  Rep.  245. 


§§  G46,  647.]  CONFESSION  OF  JUDGMENT.  «.;».•  7 

their  attorneys,  and  by  agreement  of  parties  the  judgment  was  ren- 
dered, no  power  of  attorney  was  required.1 

§  646.  Amount  of  debt  or  damages  should  be  agreed  on. 

It  is  necessary  to  a  confession  of  judgment  that  the  amount  of 
the  debt  or  damages  should  be  agreed  upon;  but  it  is  sufficient  if  it 
be  rendered  certain  from  the  agreement  of  the  parties.  "Where 
the  judgment  recited  that  the  defendants,  by  leave  of  the  court, 
withdrew  their  pleas,  and  say  they  cannot  deny  the  plaintiffs  cause 
of  action  against  them  for  debt  and  interest  in  plaintiffs  p» ' 

ned,  it  was  held  that  it  was  in  effect  a  confession  of  judgment 
for  a  sum  certain,  to  be  ascertained  simply  by  reference  to  the  pe- 
tition, without  the  necessity  of  a  jury  to  ascertain  the  indebted- 
ness.2 And  when  there  was  a  confession  of  judgment  on  a  note, 
which  was  made  part  of  the  petition,  it  was  held  that  the  entry  of 
judgment  was  sufficient,  which  recited  that  "  the  defendant  came 
into  court  and  confessed  judgment,  whereupon  it  is  considered  by 
the  court,"  etc.,  without  stating  more  especially  that  the  defendant 
confessed  judgment  for  the  particular  amount.1 

§647.  Release  of  errors;  impeachment. 

A  judgment  by  confession  operates  as  a  release  of  all  errors  in 
the  record  thereof,  but  it  may  be  impeached  for  fraud  or  other 
equitable  causes.4  In  suits  by  attachment,  where  the  property  has 
been  replevied,  the  judgment  is  as  binding  upon  the  sureties  upon 
the  replevin  bond  as  it  is  upon  their  principal.*  Though  such  judg- 

1  Lauderdale  v.  Ennis  Stationery  Co.,  24  S.  W.  Rep.  834    Under  a  power  of  at- 
torney to  confess  judgment  in  favor  of  a  city  for  the  "amount  expended  on  two 
lots"  for  street  improvements,  a  judgment  for  the  cost  of  the  nnpn.vt-i 
with  interest  added,  is  invalid.    Cordray  v.  City  of  Galveston,  26  8.  W.  Rep.  843. 

2  Burton  v.  Lawrence,  4  T.  373.     An  agreement  in  writing.  l>y  the  heir*  of  a 
deceased  defendant,  that  if  the  plaintiff  will  not  romi*-!  administration  on  the 
estate,  they,  the  heirs,  will  make  themselves  parties  defendant  at  the  n.  \t  term 
of  the  court,  is  equivalent  to  an  agreement  by  an  administrator  that,  if  tctre 
facias  be  not  served  upon  him,  he  will  corn.-  in  voluntarily  an.l  make  himself  a 
party  defendant    Such  agreement,  with  a  stipulation  that,  in  ill-fault  • 

said  heirs  so  making  themselves  parties,  they  will  pay  the  pl.iintitT  tin-  full 
amount  claimed  in  the  suit,  with  all  costs,  is  an  absolute  agreement  to  become 
parties;  and  where  the  cause  of  action  was  an  open  account,  was  held  to  amount 
to  a  liquidation  of  the  demand,  tlu-n-liy  autlioi  i/.ing  judgment  final  by  default 
Against  said  h.  irs,  without  a  writ  of  inquiry  to  ascertain  the  amount  Barton 
v.  Nix,  20  T.  39. 

'Burton  v.  Lawrence,  4  T.  878;  Liu!-  r,  CrittM  1- 1>.  10  T.  182;  Towturn 
Moore,  13  T.  30:  Htiti-hinaon  v.  Owen,  20  T.  287;  Oo»  v.  Pilgrim.  28  T.  968. 

«  R  a  1351;  Mrrritt  v.  Clow,  2  T.  •>,';  iHmman  v.  liartwell.  9  T.  4W;  Town- 
send  v.  Moore,  l  irton  v.  Lawrence,  4  T.878;  Cartwrigli! 

•Garner  v.  Burleson,  26  T.  348;  Merrill  v.  Clow,  2  T.  582;  Dunmun  T.  ilart- 
well,  9  T.  495;  Towusend  v.  Moore,  18  T.  36. 


608  CONFESSION    OF   JUDGMENT.  [§  647. 

ment  cures  all  errors  committed  in  defectively  stating  a  cause  of 
action,  or  in  the  rulings  made  by  the  court  before  it  was  entered, 
still  the  pleadings  must  disclose  some  basis  for  the  judgment.  Hence 
when,  in  a  suit  to  recover  $298.75,  judgment  was  rendered  by  con- 
fession for  $792.54,  there  being  no  pleading  to  authorize  such  a 
judgment,  it  was  reversed.1  The  judgment  is  not  a  waiver  of 
errors  unless  made  conformably  to  law.2 

»  Frazer  v.  Woodward,  61  T.  449. 
2  Montgomery  v.  Barnett,  8  T.  143. 


CHAPTER  XLI. 

STATEMENT  OF  FACTS 


648.  When  and  how  prepared. 

•    What  included  in  statement  of 
•is. 

650.  When  the  parties  disagree. 

651.  Made  up  and  filed  in  vacation, 

when. 


§  652.  Statement  not  filed  in  time  may 

be  considered. 

65a  Procedure  in  court  of  civil  ap- 
peals where  statement  of  fact* 
is  found  insufficient. 
654  Presumptions  and  rulings  in  ab» 
sence  of  statement  of  facts. 


?  048.  When  and  how  prepared. 

After  the  trial  of  any  cause,  either  party  may  make  out  a  written 
merit  of  the  facts  given  in  evidence  on  the  trial,  and  submit  it 
t«>  the  opposite  party,  or  his  attorney,  for  inspection.     If  the  par- 
or  their  attorneys  agree  upon  such  statement,  they  must  sign, 
it  and  submit  it  to  the  jiul.i:e,  who  must,  if  he  find  it  correct,  ap- 
pro\  _:n  it,  and  it  must  then  be  filed  with  the  clerk.     Where 

.iirivr.l  by  the  parties  to  the  suit,  or  their  attorneys  of  record, 
that  tin-  evidence  adduced  upon  the  trial  of  the  cause  is  sufficient 
to  establish  a  fact  or  facts  alleged  by  either  party,  the  testimony 
of  the  witnesses  and  the  deeds,  wills,  records  or  other  written  in- 
struments, admitted  as  evidence  relating  thereto,  must  not  be  stated 
i  in  detail  into  a  statement  of  facts,  but  the  facts  thus  es- 
tablished must  be  stated  as  facts  proved  in  the  case.    An  ii 
ment,  such  as  a  note  or  other  contract,  mortgage  or  deed  of  t 
that  constitutes  the  cause  of  action  on  which  the  petition,  or  an- 
.  or  cross-bill,  or  intervention  is  founded,  may  be  copied  once 
in  the  statement  of  facts.     When  there  is  any  reasonable  doubt  of 
the  sufficiency  of  the  evidence  to  constitute  proof  of  any  one 
under  the  preceding  rule,  there  may  then  be  inserted  such  of  the 
:he  witnesses  and  written  instruments,  or  parts  thereof, 
as  !••  ts.1 

i  A.-ts  1 «.«»-.».  ,,.  42:  R.  S.  i:t7'.»:   Kul.-s  11  an-1  7:1     Th-  lir-r  tw,.  M-nt-nr,-*  .  | 
above  statute,  t  the  old  st;.  •  r  to  the  amend- 

iiii-iit  ..f  1*92.     All  afti-r  tl..-  w 
f..r  tin- 'li-trirt  an-l  county  .-..un-.      Lftfl    |h*  WoH      '••!.•    oU    -tntute  COO- 

a  it  read. -shall  be  filed  wit 
during  the  ti-nn. "     ]  re-quiring  the 

of  facto  to  be  file«l  thirii.  -fro. 

\Vh  .  ug  A  statement,  it  must 

clearly  a|.|..-:ir  troin  tlf  trim- n|.t  tn.a  n  was  filed  during  UM  term.  McDonald 
x.  Bbbb,  »a  \V.  H«-|..  r. 
H 


010  STATEMENT   OF   FACTS.  [§  049, 

A  statement  signed  only  by  the  attorneys,  not  having  the  ap- 
proval of  the  judge,  will  not  be  noticed.1  The  failure  or  refusal  of 
the  trial  judge  to  sign  a  statement  of  facts  will  not  be  considered 
on  appeal  unless  complaint  against  the  action  or  omission  be  brought 
up  in  the  assignment  of  errors.  The  proper  practice  would  be  for 
the  aggrieved  party  to  apply  for  a  writ  of  mandamus?  An  ap- 
proval by  the  judge  without  the  signature  of  counsel  is  not  suffi- 
cient, unless  a  disageement  is  clearly  expressed  or  necessarily  im- 
plied ;  and  a  disagreement  will  not  be  implied  where  it  appears  that 
the  paper  was  filed  before  the  motion  for  a  new  trial  was  made.3 

An  agreement  between  opposing  counsel  incorporated  in  the 
transcript,  to  the  effect  that  the  evidence  found  in  the  statement  of 
facts  contained  in  the  transcript  of  another  cause  on  appeal  may  be 
used  in  the  appellate  court,  contemplates  a  mode  of  procedure  not 
recognized  by  law  and  will  be  disregarded.4 

§  649.  What  may  be  included  in  a  statement  of  facts. 
The  district  and  county  court  rules  provide  as  follows: 
"  When  it  becomes  necessary  to  insert  in  a  statement  of  facts  any 
instrument  in  writing,  the  same  shall  be  copied  into  the  statement 
of  facts  before  it  is  signed  by  the  judge,  and  instruments  therein 

IG.,  C.  &  S.  F.  Ry.  Co.  v.  Cannon,  29  S.  W.  Rep.  689;  G.,  C.  &  S.  F.  Ry.  Co.  v, 
Calvert,  31  S.  W.  Rep.  679;  W.  U.  Tel.  Co.  v.  Walker,  26  S.  W.  Rep.  858-  City  of 
Victoria  v.  Jessel,  7  Civ.  App.  520  (27  S.W.  Rep.  159);  Caswell  v.  Greer,  4  Civ, 
App.  6o9  (23  S.  W.  Rep.  331);  Tex.  &  Pac.  Ry.  Co.  v.  Cole,  1  S.  W.  Rep.  631,  632; 
Renn  v.  Sarnos,  42  T.  104. 

2  Reagan  v.  Copeland,  78  T.  551  (14  S.  W.  Rep.  1031).  A  statement  of  facts,  cer- 
tified to  by  the  judge  before  whom  the  case  was  tried  as  an  agreed  statement, 
•which  is  only  signed  by  counsel  for  one  party,  may  be  considered  on  appeal,  the 
presumption  being  that  it  was  properly  certified.  The  statement  of  the  judge, 
made  out  and  filed  after  the  adjournment  of  the  term  and  improperly  copied 
into  the  transcript,  in  reference  to  whether  or  not  a  statement  of  facts  was  prop- 
erly certified  or  approved  by  him,  will  not  be  considered  on  appeal,  in  the  ab- 
sence of  a  motion  to  strike  out  and  suppress  the  statement  on  account  of  deceit 
practiced  by  one  of  the  parties,  or  his  counsel.  Schneider  v.  Stephens,  60  T.  419. 

a  Barnhart  v.  Clark,  59  T.  552. 

4  Johnson  v.  Railway  Co.,  69  T.  641  (7  S.  W.  Rep.  379).  A  change  in  a  state- 
ment of  facts  after  it  has  been  signed  by  the  trial  judge,  made  without  author- 
ity, if  made  by  one  seeking  a  revision  of  the  judgment,  would  be  visited  by  the 
penalty  of  at  least  having  the  paper  stricken  from  the  record.  Newman  v.  Dod- 
son.  61  T.  91. 

The  appellate  court  cannot  impeach  the  truth  of  a  statement  of  facts  agreed 
on  by  counsel  and  signed  by  the  trial  judge.  If  any  portion  of  it  fails  to  agree 
•with  a  bill  of  exceptions  which  refers  thereto,  there  is  no  means  whereby  the 
court  can  determine  which  is  correct,  or  whether  error  was  committed  in  the 
matter  to  which  the  exception  refers.  Wiseman  v.  Baylor,  69  T.  63  (6  S.  W.  Rep. 
74u).  Where  counsel  do  not  agree  upon  a  statement  of  facts  and  the  statement 
is  prepared  by  the  judge,  and  it  is  inconsistent  with  a  bill  of  exceptions  touch- 
ing matters  excepted  to,  the  bill  of  exceptions  on  appeal  will  be  looked  to;  other- 
wise the  court  might  deprive  a  party  of  a  bill  of  exceptions  properly  taken  and 
signed.  McClelland  v.  Fallen,  74  T.  236  (12  S.  W.  Rep.  60). 


8TAI  F   PACTS. 

«>'d\  it.,  aii.l  1  to  be  copied  shall  not 

part  .if  tin-  ivo.nl.1 

"\VI,ei  ,|>ute  about,  or  <|U.->ti..ii    made   ii|H.n. 

validity  or  •-.,  m  -,  .tin-  i«»nn  ••!  a  d.-.-d.  ,,r  its  re,  .11  «T 

Miirt.  up  any  \\ritten   instrument    add        i 
t  should  be  described   ami  not 
evidence  stated  a-,  a  faol  established. - 
-  When  «jiie>tions  a;  ..n  such  instruments  as  are  m- 

in  tli-  iiii«r  rules,  only  So  much  or  BOofa  parts  of  them  -hall  IM» 

•  1  into  tin-  statement  of  farts  as  may  be  necessarv  to  present 
the  question,  and  the  balance  of  them  shall  <>nlv  be  describ. 

1 1.  as  prescribed  in  the  preceding  rule.1 

*•  The  commissions,  notiivs  and  intern'L'atories  in  d«-  .  ad 

in  »-\  idfiio-.  ^i\-.\\\  in  no  case  !•»> 
inent  of  facts,  but  the  evidence  thus  taken  and  admitted  shall  a| 
in  the  statement  <>f  facts,  in  the  >ame  manner  a>  th«.n«:h  the  witness 
had  been  »n  Hie  >tand  in  ^ivitii:  his  evidence,  ami  n«t  • 
form  or  >r!> stance.4 

"  Neither  tlie  notes  of  a  stenographer  taken  iij>on  the  trial,  nor  a 
o.j.y  thert-i.f  made  at  length,  shall  be.  tile..  .ttement  of  : 

but  the  statement  made  therefrom  shall  be  condensed  throughout  in 
accordance  with  the  spirit  of  the  fore^oini:  rules  upon  r 

1  Rule  74.     In  making  up  thf  transcript,  clerks  are  f«>rl-i<M.  n  to  copy  at 
strtuiK-nt   «>f  writing  whi'-h   i<   un-i'  ly   i.  t-  rred  to  an«l  <lirrct<-tl  t<»  be  copied. 

i.-  ;i|.|>.  ll.iti-  i-ourt  will  not  take  notice  of  .l.«  um  Taul 

v.  Wri^lit  The  court  nm>t  act  upon  t! 

in  tlif  record,  ami  the  law  proviih-s  no  im-ans  for  its  ;un.-!i.ln 
properly  ilf<'liii.-c|  t»  in<«Tt  in  th«-  -tat«-iii' nt  of  facts  ina.li-  up  l-y  tin-  judge  * 
•    i-iiiployuifiit  l»-t\v»'«-ii   thf  parti-  -   int- n.|.   !  l->  !•••    in*,  rt.-.l.     T 

:;  i«;  >.  v. 
aureeni'-ir  1  not  having  Ix'en  incor|Hirat«-il  into  a  »tat 

I.T.-.I  on  app.  al.     M.-I  >..\v,-:: 
v.  Al.-orn.  Ts  'I 

» Rule  76. 

4  Rul«-  77.     The  rules  wn                 tor  the  conv.-nii-nr.-  of  tli«-  <  ••>  tx- 

tin-  ili-|M»itioti  of  ap[H'a!>..     \Vh.-n  tli>y  aii-  . l.-r.-«arde«l, »n  -tioD» 

toan                                 ses  on  the  trial  are  incorporated  at  ItMgl  •'tat*- 

nu-nt                    -lit-  i-oMs  of  tin-  stat'-nit-nt  an  .                                        "<it  mil  I 

iin-t    thf  ap|M'l!ant   without    rt-irai.t    t  • -n  of  tin- 

apj).  -v  i:.  i:.  B 

narily.  tin-  int«-rro^atori. -s  an.l  an-u-  i  .ijier* 

used  in  t-vi.l.-nc.-.  >)iouM  not  !«•  in.  in  thf  n-c«.r«l.  hut  th«-  f.i 

th.-n-hy.  in-t.  a.l.    Th.-  nil.-  prohihitinn  it  lessens expeiue ai. 

•  n  of  causes.     Wlu-n  this  ruh-  is  <l<  partfl  fnun. 

necessity  for  it  -houl.l  IM-  ni.-iilf  appar.  i  t  in  thf  n •.  --n  a  »t*t« 

of  facts  is  ma. I.-  l.y  thfju.li.-..  inst.  a  •!  ..i  i-\  •••  :  the  record  i»  need- 

lewly  incuinlv  i.  .1  l.y  nn 

i  for  .lismi-xal  of  the  cause.     McManus  v.  Wallis,  59  T.  584 

.     The  full  stenographic  notes  of  the  testimony  and  proc. 


STATEMENT   OF    FACTS.  [§  650. 

The  province  of  the  statement  of  facts  is  to  bring  before  the 
court,  clearly  and  unmistakably,  the  evidence  upon  the  trial;  and 
when  references  are  made  in  the  statement  of  facts  to  other  parts 
of  the  record  for  portions  of  the  evidence,  they  should  be  so  made 
as  to  indicate  with  certainty  the  evidence  intended.1 

§  650.  When  the  parties  disagree. 

If  the  parties  do  not  agree  upon  a  statement  of  facts,  or  if  the 
judge  do  not  approve  or  sign  it,  the  parties  may  submit  their  re- 
spective statements  to  the  judge,  who  shall,  from  his  own  knowl- 
edge, with  the  aid  of  such  statements,  during  the  term,  make  out 
iind  sign  and  file  with  the  clerk  a  correct  statement  of  the  facts 
proved  on  the  trial,  and  such  statement  shall  constitute  a  part  of 
the  record.2  When  a  statement  of  facts  is  signed  by  the  presiding 
judge  only,  without  any  reference  being  made  to  disagreement  in 
regard  thereto  by  the  attorneys  for  the  parties,  it  will  be  presumed 
that  the  contingency  had  occurred  which  authorized  the  judge  to 
make  out  and  certify  the  statement  of  i'acts.3  The  judge  may  pro- 

the  trial  of  a  cause  should  not  incumber  the  record  as  a  substitute  for  the  state- 
ment of  facts.  Such  a  practice  is  in  violation  of  the  rules.  Dreiss  v.  Fried- 
rich,  57  T.  70;  Rains  v.  Wheeler,  76  T.  390  (13  S.  W.  Rep.  324);  W.  U.  Tel.  Co.  v. 
De  Jarles,  8  Civ.  App.  109. 

Where  the  statement  of  facts  was  not  made  up  in  accordance  with  the  rules, 
being  simplj'the  stenographer's  notes  of  the  testimony  of  the  witnesses,  written 
<fut  m  detail,  though  in  narrative  form,  the  court  of  civil  appeals  refused  to 
strike  it  out.  but  at  the  cost  of  appellant,  and  required  him  also  to  pay  the  cost 
of  copying  the  statement  into  the  transcript.  H.  &  T.  C.  Ry.  Co.  v.  Williams,  31 
S.  W.  Rep.  556.  Same  ruling  where  the  statement  contained  copies  of  instru- 
ments the  substance  of  which  ought  to  have  been  stated.  McNeil  v.  Moore,  7 
Civ.  App.  536. 

1  Stephens  v.  Bowerman,  27  T.  18.  A  statement  of  facts  when  approved  did 
not  have  copied  into  it  or  otherwise  made  a  part  of  it  certain  reports  of  the  ad- 
ministrator, who  with  his  sureties  were  sued  for  devastavit.  The  reports  were 
copied  into  the  statement  of  facts  in  the  transcript,  but  were  stricken  out  on 
motion.  The  verdict  for  plaintiffs  being  sustained  only  by  the  excluded  re- 
ports, the  want  of  testimony  to  support  it  is  ground  for  reversal.  Mason  v. 
Rodgers,  83  T.  389  (18  S.  W.  Rep.  811). 

The  transcript  purported  to  show  the  evidence  offered  under  the  name  of  a 
statement  of  facts.  It  consisted  of  transcripts  of  certain  papers  in  other  suits 
and  written  admissions  of  counsel  It  was  held  no  part  of  the  record.  Ficklin 
v.  Strickland,  13  S.  W.  Rep.  272;  Taylor  v.  Davis,  13  S.  W.  Rep.  642. 

*  R.  S.  1380;  Withee  v.  May,  8  T.  160. 

'Steinbeck  v.  Stone,  53  T.  382;  Darcy  v.  Turner,  46  T.  30;  Harlan  v.  Haynie, 
ST.  459.  The  transcript  showed  that  the  statement  of  facts  was  made  out  by 
the  judge  trying  the  cause,  he  certifying  that  counsel  had  "  failed  to  agree."  A 
motion  was  made,  supported  by  affidavit,  to  strike  out  the  statement  of  facts 
because  appellant's  counsel  did  not  submit  his  statement  of  facts  to  appellee  or 
his  counsel  for  inspection,  as  required  by  the  statute.  It  being  shown  that  the 
judge  had  in  his  possession  appellee's  statement  of  facts  when  that  of  appellant 
•was  presented  to  him,  and  that  the  statement  of  facts  made  up  by  the  judge 
was  made  up  partly  from  each,  the  motion  was  overruled.  S.  &  E.  T.  Ry.  Co.  v. 
Joachimi,  58  T.  452. 


8TATBMEN  ^CTS. 


ceed  to  make  out  a  statement  from  statements  furnished  by  only 

«>f  the  parties.1 


5;  651.  Made  up  and  filed  in  vacation,  when. 

The  court  may,  l»y  an  order  entered  upon  the  record  diiriii- 
t'-rm,  authorize  the  statement  of  facts  to  be  made  up,  ar 
and  tiled.  in  vacation,  at  any  time  not  ex.  -,'n  days  after  the 

adjournment  of  the  term.2     This  statute  must  be  strictly 
The  rot-on  1  must  show  an  order  of  court,  entered  of  record  <!'. 
the  term.'     The  time  allowed  <-;mnot  exceed  ten  •: 
journment.4     The  court  cannot  authori/.e  tho  clerk  to  file  ; 
nient  as  of  a  date  within  the  ten  days.*    The  order  must  l»-  appli«l 
for  by  a  written  motion  entered  of  record."    Consent  of  c<> 
will  not  dispense  with  the  order,  nor  with  a  tiling  within  tli 
days.7     The  appellate  court  will,  of  its  motion,  take  notice  wh. 
the  record  shows  a  proper  order  of  court."     It  is  said  chat  th« 
oral   rule  which  the  statute  under  consideration  was  de>it;i!. 
on  force  was  the  preparation  and  tiling  of  the  statement  o: 
term  time.9 

After  the  adjournment  of  a  term  of  court,  the  judge  has  no  power 
to  reopen  his  court  and  allow  a  motion  for  leave  to  prepare  a  ri 
mont  of  facts  within  ten  days  after  the  adjournment  of  court  to  be 
tiled,  and  <_Tant  an  order  in  accordance  with  tho  motion.10 

?  652.  Statement  not  filed  in  time  may  be  considered. 

Tho  statute  provides  that  whenever  a  statement   d  -iiall 

boon   tiled  after  the  times  respectively  prescribed  in  ar 

M.I  i:M   of  the    KoviM-d  Statutes,  and  the  p.: 

derinir   or   filin.i:  the   same   shall  show    In   the   satisfaction   of   the 
courts  of  civil  appeals  that  he  has  used  due  diligence  to  obtain  the 

i  With-,   v   May.  8T.  160. 

.  ;•  r,  K  supra. 
M.  &  <i.  N.  K'y.  Ott  v.  Bcott,  >  T.  187;   MrCuir-  '•••V. 

vitt  v.  IHim.h-i:.  :.T.&  P.  l: 

Armstrong  r,  Fiean,  59  T  v.  Cook,  «OT.  488:  Lock 

\  .  Ca.  68  T 

.  78  T.  -'.I  ;    '.;  9   W,  l:-  iiroumard  ^ 

\v.  l;.  p.  - 
Miiiih.  i«  s.  \v.  i;.  .,,.  w.  Whit-  v.  H..I1.-X.  -">  ft  w.  Hep.  8»;  1 

A    t;  ,,  '  -.liiiK'.  •-."•>  s.  W.  HeiK  1114;  RottMMn  T.  Orosd.. 

81  a  W.  K,-p.  :wi. 

v.  Ca  v.  Scott,  58  T.  1-7  .  M-  Quire  v.  Newbill,  ^  ^«nler 

v.  Berryir.  104. 

s  I.  A  f.  Co.  v.  Scott,  58  T.  187. 

•  Bin...  v.  NYiison.  59  T.  878. 

.via  v.  Mlun.l.  x.-»tonT.  Dciet,  U   -  ^    •  p  -  ' 

M,,t!  Mini.  .".1  ^>  W.  Rep.  814;  Raleigh  T.  Cook,  «0  T.  48& 

'  M--«Miir.-  v.  N,-wl,ill.  .>  'I' 
i»  I.  &  <;.  N.  Ky.  Co.  v.  Smitl..  '..'  T.  185. 


STATEMENT   OF   FACTS.  FS  G53. 

L0 

--approval  and  signature  of  the  judge  thereto,  and  to  file  the  same 
-within  the  time  in  this  chapter  prescribed  for  filing  the  same, 
and  that  his  failure  to  file  the  same  within  said  time  is  not  due  to 
<the  fault  or  laches  of  said  party  or  his  attorney,  and  that  such 
•failure  was  the  result  of  causes  beyond  his  control,  the  courts  of 
civil  appeals  shall  permit  said  statement  of  facts  to  remain  as  part 
of  the  record,  and  consider  the  same  in  the  hearing  and  adjudica- 
tion of  said  cause  the  same  as  if  said  statement  of  facts  had  been 
filed  in  time.1  This  statute  only  (Dispenses  with  the  limitation  in 
preparation,  etc.,  of  a  statement  of  facts  as  to  time  when  there 
lias  been  no  lack  of  diligence  in  preparing  it.  It  does  not  dispense 
with  the  prerequisite  of  the  approval  and  signature  by  the  judge.2 
A  party  exercising  due  diligence  is  not  restricted  to  ten  days  after 
the  adjournment  of  the  term  within  which  he  may  secure  a  state- 
ment of  facts  by  extension  of  such  period.  A  party  aggrieved  by 
the  failure  or  refusal  of  a  district  judge  to  approve  a  statement  of 
facts  may  at  once  procure  a  writ  of  mandamus  compelling  him  to 
discharge  such  duty.  Failing  to  do  this,  the  failure  to  have  a 
statement  of  facts  in  the  record  by  fault  of  the  trial  judge  is  no 
ground  for  reversal  on  appeal.3 

Time  was  allowed,  by  order  entered  of  record,  for  the  making  up, 
signing  and  filing  of  a  statement  of  facts  within  ten  days  after  the 
adjournment  of  the  term ;  within  the  ten  days,  and  at  a  time  des- 
ignated by  the  judge,  the  opposing  counsel,  having  failed  to  agree, 
delivered  their  respective  statements  to  the  judge,  who  failed  to 
make  up  and  file  a  statement  of  facts  before  the  expiration  of  the 
ten  days,  and  it  was  held  that,  in  the  absence  of  the  provision  of 
the  above  statute,  it  would  be  held  that  such  a  failure  on  the  part  of 
the  trial  judge  would  require  a  reversal  of  the  judgment  rendered.4 

§  653.  Procedure  in  court  of  civil  appeals  where  statement  of  facts 
is  found  insufficient. 

Should  it  appear  to  the  court  of  civil  appeals,  after  the  submis- 
sion of  the  cause,  that  the  statement  of  facts  has  been  prepared  in 
violation  of  the  rules,  the  court  may  require  the  plaintiff  in  error 

i  Acts  1887,  p.  17;  R.  S.  1383. 

*  Rains  v.  Wheeler,  76  T.  390  (13  S.  W.  Rep.  390). 

'Osborne  v.  Prather,  83  T.  208  (18  S.  W.  Rep.  613);  Trinity  &  S.  Ry.  Co.  v.  Lane, 
79  T.  643  (15  S.  W.  Rep.  477;  16  S.  W.  Rep.  18);  Reagan  v.  Copeland,  78  T.  551  (14 
8.  W.  Rep.  1031).  On  failure  to  file  a  statement  in  time,  an  affidavit  to  the  ef- 
fect that  the  statement  was  presented  to  the  trial  judge  before  adjournment, 
and  that  he  promised  to  approve  and  file  it,  does  not  show  diligence.  Worley  v. 
Mclntire,  23  S.  W.  Rep.  996. 

« Collins  v.  Kay.  69  T.  365  (6  S.  W.  Rep.  613).  Without  reference  to  the  above 
statute,  it  was  held  that  intrusting  a  statement  of  facts  to  the  mail  instead  of 
presenting  it  to  the  judge  in  persoji  or  by  messenger,  so  that  it  was  not  signed 
and  filed  within  the  ten  days  allowed  by  order,  showed  a  lack  of  proper  dili- 
gence. Proctor  v.  Wilcox,  68  T.  219  (4  S.  W.  Rep.  375).  ' 


'  *•]  8TA 1  VOT8. 

<>r  appellant  to  furnish  f..iir  printed  copies  of  such  statement  of  facts, 
and  upon  his  failure  to  do  so  may  diM-egard  it.  If  the  violation  of 
the  rule  be  tlairrant,  the  court  may  disregard  the  statement  of  : 
altogether,  unl.-ss  compel  for  the  appellant  or  plaintiff  in  error  shall 
make  it  appear  by  affidavit  or  otherwise  that  he  prepared  a  State- 
ment -riving  what,  in  his  opinion,  he  denned  a  fair  presentation  of 
the  e  .  prepared  in  accordance  with  the  rules,  and  that  he 

unable  to  «ret  it  agreed  to  or  approved.  But  should  counsel  for 
appellant  or  plaintiff  in  error  show  that  he  has  used  due  diligence 
to  have  a  proper  statement  of  facts  signed  and  approved,  and  that 
the  statement  of  tacts  as  prepared  is  the  result  of  the  fault  of  the 
•counsel  for  the  opposite  party,  such  as  his  failure  or  refusal  to  agree 
to  a  proper  statement  presented  to  him,  the  costs  of  printing  the 

ment,  if  ordered,  shall  be  taxed  against  the  appellee  or  defend- 
ant in  error,  as  the  case  may  be.1 

£  654.  Presumptions  and  rulings  in  absence  of  a  statement  of  fact*. 

In  the  absence  of  a  statement  of  facts  every  legal  intendment 
is  in  favor  of  the  correctness  of  the  judgment,  and  it  will  be  pre- 
sumed that  the  evidence  was  sufficient  to  authorize  the  finding;1 
and  that  every  fact  necessary  to  support  the  judgment  and  author- 
ized by  the  pleadings  was  established.'  It  will  l>e  presumed  that 
such  evidence  was  introduced  as  would  support  the  judgment.4 
But  when  the  verdict  is  repugnant  to  the  admissions  in  the  plead- 
ings, a  statement  of  facts  is  not  necessary  to  show  that  the  verdict 
rong.  Nothing  can  be  presumed  to  have  been  proved  which 
•could  not  legally  have  been  proved  under  the  pleadings.*  To  re- 
verse a  judgment  in  the  absence  of  a  statement  of  facts  the  appel- 
late court  should  ordinarily  be  able  to  see  not  only  that  the  court 
below  had  erred,  but  that  such  error  must  with  reasonable  cer- 
tainty have  produced  a  substantial  injury  to  the  party  in  the  cause.' 

Alleged  error  in  the  conclusions  of  fact  will  not  be  noticed  when 
there  is  no  statement  of  facts ; :  if  the  conclusions  of  the  judge  were 
not  excepted  to,  the  court  will  only  consider  whether  the  pleadings 

1  Rule  53  for  courts  ,.f  <-i\  il  appeals. 

-  \\ '.,!!  .       r.  I'--" -1.  62  T.  886;  Cochran  v.  K.-lluin,  4  T.  120;  Bot. 
T.  63»5:  Jinn,  s  v.  Kulcrod,  5  T.  0  :  v.  Townst-nd,  2  T.  Ml ;  Funck 

23  S.  vv.  !:•  -p.  117. 

I).-  v.  siiaim"ii.  •',-.»  T. !'.»-:  .\l.-.\nn.l.-r  v.  Mullmll.  1  C.C.7W;  HeMenheiuwr 
v.  Kll  'Hi-""    ».  Aiitry.  4  T.  :»7l:   HendewOO  V. 

Tr.'.uM.  .  s  T.  171:  Walling  v.  Kinnar.l.   1"  T.  506;  <.-ntry  v.  Schneider,  77  T.  3 

\V.   IJ.  ]..  «;U-,:    A.lkin-  v.   Ha. 
«CotulIa  v.  t;..—.m.  77  T.  ::-.'  .13  S.  \V.  i 

»Luckett  v.  Tiiwiix-n,!.  ::  T.  ll'.»;  (  l.:i|.i.i;.ii  \.  Si). •,-.!.  17  T.  428. 
•Muii.-l.rak.-r  v.  I 

.,.  Hm-.l.-tt  >.  80  &  W.  Rep.  ir>47; 

Ma.l  i  Idea.  79  T  &  P*c.  Ry.  Co.  T.  « 

&  Vf.  i:-  p  •• .;:.  'W-.':  Wright  v.  r.it...  i  -  081. 


616  STATEMENT   OF    FACTS.  [§  654, 

support  the  judgment.1  "When  there  is  no  statement  of  facts  in 
the  record,  but  there  are  found  therein  the  conclusions  of  fact  and 
law  found  by  the  district  judge  trying  the  cause,  which  conclusions- 
of  fact  are  accepted  by  appellant  as  correct,  the  court  will  disre- 
gard the  absence  of  a  formal  statement  of  facts  and  revise  any 
errors  committed  by  the  court  below  in  applying  the  law  to  the 
conclusions  of  fact  so  found.2 

The  rule  is  that  exceptions  to  the  admission  or  exclusion  of  testi- 
mony will  not  be  considered  in  the  absence  of  a  statement  of  facts ; 3 
and  that  the  ruling  of  the  court  in  the  giving  of  instructions  will 
not  be  revised.4  The  exception  is  where  the  error  in  the  charge  is 
so  glaringly  apparent,  when  taken  in  connection  with  the  plead- 
ings and  the  verdict,  as  to  leave  no  doubt  but  that  the  finding  of 
the  jury  was  controlled  by  the  improper  instruction.  An  excep- 
tion also  is  where  the  charge  is  upon  an  issue  not  made  in  the 
pleadings  and  the  verdict  is  evident^  upon  such  issue.5 

An  assignment  that  the  verdict  is  contrary  to  the  law  and  the 
evidence,  or  that  the  damages  are  excessive,  will  not  be  considered 
in  the  absence  of  a  statement  of  facts.6  Errors  of  law  usually 
noticed  by  the  court  where  there  is  no  statement  are  those  which 
arise  on  the  sufficiency  of  the  pleadings.7 

1  Smithwick  v.  Kelley,  21  S.  W.  Rep.  690. 

2  Chance  v.  Branch,  58  T.  490;  Cousins  v.  Grey,  60  T.  346.    Where  the  judgment 
shows  that  the  trial  court  heard  the  issue  presented  by  a  plea  in  abatement,  and 
found  against  appellant  on  "the  law  and  the  facts,"  the  appellate  court  cannot 
say,  without  a  statement  of  facts,  whether  the  ruling  was  erroneous  or  not, 
Voigt  v.  Hubertus,  29  S.  W.  Rep.  44. 

s  Rains  v.  Herring,  68  T.  468  (5  S.  W.  Rep.  369);  Torrey  v.  Cameron,  74  T.  187 
(11  S.  W.  Rep.  1088);  Bergstrom  v.  Bruns,  24  S.  W.  Rep.  1098;  Rosenfield  Const, 
Co.  v.  Cooney,  26  S.  W.  Rep.  1004.  Where  excluded  evidence  appears  material 
and  relevant  to  the  issues  under  any  probable  state  of  the  testimony,  and  the 
ground  of  objection  is  not  tenable,  a  bill  of  exceptions  showing  such  ruling 
ought  to  be  considered  and  ^he  ruling  revised,  although  no  statement  of  facts 
appears  in  the  record.  Torrey  v.  Cameron,  74  T.  187  (11  S.  W.  Rep.  1088).  In  the 
absence  of  a  statement  of  facts,  when  there  is  nothing  to  show  that  excluded 
testimony  was  relevant  to  the  pleadings  as  they  appear  in  the  transcript,  and 
material  to  the  case  of  the  party  complaining  as  made,  the  judgment  cannot  be- 
reversed.  Harris  v.  Spence,  70  T.  616  (8  S.  W.  Rep.  313);  Goodale  v.  Douglas,  & 
Civ.  App.  695  (24  S.  W.  Rep.  966). 

*  McCormick  H.  M.  Co.  v.  Gilkey,  23  S.  W.  Rep.  325;  L  &  G.  N.  Ry.  Co.  v.  Wolfr 
3  Civ.  App.  383  (22  S.  W.  Rep.  187);  McDaniel  v.  Martin,  25  S.  W.  Rep.  1041; 
Raleigh  v.  Cook,  60  T.  438;  San  A.  &  A.  P.  Ry.  Co.  v.  Moore,  75  T.  643  (13  S.  W, 
Rep.  295);  A.,  T.  &  S.  F.  Ry.  Co.  v.  Locklin,  29  S.  W.  Rep.  690;  Washington  v. 
Eckart,  15  S.  W.  Rep.  1047;  Burgen  v.  City  Nat.  Bank,  18  S.  W.  Rep.  575;  Henrie 
v.  State,  41  T.  574;  Frost  v.  Frost,  45  T.  325;  Ross  v.  McGowen,  58  T.  603. 

»Tex.  &  Pac.  Ry.  Co.  v.  McAllister,  59  T.  349;  Hill  v.  Railway  Co.,  80  T.  431  (15 
8.  W.  Rep.  1099);  Davis  v.  Calhoun,  41  T.  554;  Bast  v.  Alford,  22  T.  399. 

6  Raleigh  v.  Cook,  60  T.  438.  An  assignment  which  complains  of  improper  re- 
marks of  counsel  in  the  argument  to  the  jury  will  not  be  considered  in  the  ab- 
sence of  a  statement  of  facts.  A.,  T.  &  S.  F.  Ry.  Co.  v.  Locklin,  29  S.  W.  Rep. 
090;  San  A.  &  A.  P.  Ry.  Co.  v.  Moore,  75  T.  643  (13  S.  W.  Rep.  295). 

1  Frost  v.  Frost,  45  T.  325. 


CIIAI'TKR  XI.II. 
MISCELLANKOUS  QUESTIONS  OF  PRACTICE. 


655.  Remarks  by  the    judge  in  the 

presence  of  the  jury. 

656.  Stenographer. 

657.  Leading    counsel;    attorney    of 

record. 

658.  Attorney  or  officer  not  to  act  as 

surety. 


§  659.  Deposit  in  court 
660.  Personal  examination  of  inured 


661.  Suits  on  contracts  with  or  for  a 

county. 

662.  City  not  required  to  give  bond 

or  security. 


$  656.  Remarks  by  the  judge  in  the  presence  of  the  jury. 

It  is  admitted  to  be  practically  impossible  for  the  trial 
make  its  rulings  on  questions  arising  during  the  trial  without 
ing  something  in  explanation.1     Remarks  upon  the  testimony  i. 
by  the  trial  judge  during  the  examination  of  a  witness  should  be 
excepted  to  at  the  time,  so  as  to  give  opportunity  to  the  court  to 
correct  or  remedy  the  injury  done.     Any  wronjr  impression   i 
upon  the  jury  may,  it  seems,  be  corrected  by  a  charge  to  the  effect 
that  the  jury  are  the  judges  of  the  weight  to  be  attached  to  the 
testimony,  and  that  it  is  not  the  province  of  the  court  to  express 
any  opinion  upon  the  question. - 

Where  the  jury  could  not  properly  have  returned  any  other 
diet,  remarks  of  the  trial  judire  are  imm.r 

idence  should   be  admitted  jury,  if  proper,  wit: 

comment  from  the  jmlire  calculated  t<  :ts  weight.1 

iSmith  v.  Tra-l.-r--  -  \V.  l>p.  :  T<XT. 

Stuart.  1  Civ.  Aj.|«.  tir.'  .-Jo  S.  \V.  H,-|,.  •• 

»Sabine.  E.  &  T.  Hy.  (  .,.  r.  t  126). 

•Connor  v.  Littl.-ti.-l,!.  I  '•'.'.  !:•]•.  -.'IT       In  aproce* 

to  the  office  of  cminty  ju.l^.-.  in   r.-fusin-   t<>   |t.-nnit    n-«|>oii,l«>nt   t<-a-k  »• 
whether  or  nut   hf  was  w.-ll   inform. ••!   in  tin-  laws  <>f  thi« -tat-  ^«»  re- 

marked in  presfticv  of  the  jury:   "This  i|iii^t»>n  has  u- 

the  higher  courts,  ntxl  this  is  ns  good  a  time  as  any  f>  ;  The 

remark  was  h«-M  rmKrimn-l  f-i  it  -li.l  n«.t  .»f  its.-lf  ini|><irt  furor  a. 

whom  it  «  I.     UtU»  T.  Stete,  79 T.  fl€    It&f!    R0piM8       \r-tnark 

by  the  ju<Uce  ns  t<«  .|ii.-ti.'n-.  r:i'-.  1  l.\  ;i  ili»nmrr»-r  is  i:  ••  «l  t<>  niiluence 

th*»  ver.lict  .-t   a  jury.      I.  A:  U.  N.  !.  -nuth.  1  ">  *48i 

<FreiherK  v.  I  tuarkn  b\ 

a  paper  in-  t<-  th- ••!'  I   i-  a.ln.i^ible  toe* 

of  a  certain  wit  •ist.-n.IinR  toshow  that  be  wMmi«uken,are  improper, 

ii  v.  Dunman,  ','H  S.  \V.  Itep.  482. 


4318  MISCELLANEOUS    QUESTIONS    OF   PRACTICE.       [§§  056,  657. 

j;  656.  Stenographer. 

For  the  purpose  of  preserving  a  statement  of  the  evidence  given 
on  the  trial  of  a  cause,  the  court  may,  and  upon  application  of 
either  party  shall,  employ  a  stenographer  or  other  competent  person 
to  take  down  the  testimony  in  a  cause.  Reasonable  compensation, 
not  to  exceed  t\venty  cents  per  hundred  words,  shall  be  allowed 
such  stenographer,  to  be  fixed  by  the  court  and  taxed  in  the  bill  of 
costs.1 

The  court  is  not  required  unreasonably  to  delay  the  trial  in  the 
effort  to  find  a  stenographer  or  other  person  competent  to  take 
<lo\vn  the  testimony;  and  having  appointed  a  person,  it  may  dis- 
charge him  if  he  proves  incompetent,  and  proceed  without  the  aid 
of  a  stenographer.  If  a  competent  person  can  be  readily  obtained, 
it  is  the  duty  of  the  court  to  appoint  him  on  the  application  of  a 
party,  but  a  refusal  to  do  so  is  not  reversible  error  if  no  injury 
results.2 

§  657.  Leading  counsel;  attorney  of  record. 

The  attorney  first  employed  is  considered  the  leading  counsel  in 
Ihe  case,  and,  if  present,  shall  have  control  in  the  management  of 
the  cause,  unless  a  change  is  made  by  the  party  himself,  to  be  en- 
tered of  record.  An  attorney  of  record  is  one  who  has  appeared 
in  the  case,  as  evidenced  by  his  name  subscribed  to  the  pleading  or 
to  some  agreement  of  the  parties  filed  in  the  case ;  and  he  shall  be 
•considered  to  have  continued  as  such  attorney  to  the  end  of  the 
suit  in  the  trial  court,  unless  there  is  something  appearing  to  the 
•contrary  in  the  record.3 

The  existence  of  authority  to  represent  a  party  litigant,  as  an 
agent  or  attorney,  will  be  presumed  from  the  recital  in  a  decree 
that  the  party  appeared  by  the  attorney ;  and  this,  although  the 
agent  or  attorney  is  not  a  lawyer;4  but  the  recital  does  not  pre- 
clude the  party  from  showing  that  the  attorney  had  not  authority 
to  represent  him.5  It  is  said  that  the  signatures  of  the  attorneys 
of  a  court  are  judicially  known  to  the  court.6  The  existence  of 
the  relation  of  attorney  and  client  will  not  be  recognized  by  a  court 
until  it  has  acquired  jurisdiction  over  the  party  whom  the  attorney 
-claims  to  represent,  unless  the  attorney  exhibits  a  warrant  of  au- 
Jthority.7  It  seems  that  where  the  jurisdiction  appears,  the  author- 

1  R  S.  1295,  1296. 

2  Hines  v.  Holland,  3  App.  C.  C.,  §  99. 
8  Rules  45,  46. 

4  Patterson  v.  Rogers,  53  T.  484. 

5  Chapman  T.  Austin,  44  T.  133. 

*  Strippleman  v.  Clark,  11  T.  296. 

-  Hoffman  v.  Cage,  31  T.  505. 


•'•'•0.]        MlM'l 

itvof  an  attorney  who  undertake^  to  represent  a  partv  i>  ptv>i, 

:md  cannot  i  -.ned  f,,r  tin-  !ir>t  time  on  appeal.1 

§  658.  Attorney  or  officer  not  to  act  as  surety. 

It  is  pro\  ided   by  rule  that   no  attorney  or  other  officer  of  the 

court  shall  he  surety  in  any  cau>e  pending  in  the  court,  except  u 
.il  leave  of  court.-'    It  is  held  that  this  rule  is  merely  direr' 
and   that   a   hoiid   signed   by  an  attorney  or  other  officer,  without 

of  court,  is  neither  void  nor  voidahle.    The  rule  was  inte 
to  protect  the  officers  of  the  court  against  the   importunity  of  liti- 
gants, and  it  is  held  that  the  purpose  of  the  regulation  is  sufficiently 
•nplished  hy  punishing  the  offender  for  contempt  of  court  with- 
out holding  the  hmid  a  nullity.1 

?;  65G.  Deposit  in  court. 

Whenever  during  the  progress  of  any  cause  any  money,  debt, 
scrip,  instrument  of  writing  or  other  article  is  paid  or  dej 
court  to  abide  the  result  of  any  legal  proceedings,  the  officer  having 
custody  thereof  is  required  to  seal  up  the  identical  money,  or  other 
article,  in  a  secure  package  and  deposit  it  in  some  safe  or  bank  vault, 
keeping  it  always  accessible  and  subject  to  the  control  of  the  court. 
He  must  also  keep  in  his  office,  and  as  part  of  the  records  thereof, 
in  a  well-bound  book,  a  correct  statement  showing  each  and  « 
item  of  money  and  property  so  received  by  him,  on  what  account 
received,  and  what  disposition  has  been  made  of  it.    On  the  expira- 
tion of  his  term  of  office,  he  must  turn  over  to  his  successor  all 
trust  funds  and  other  property,  and  the  record  aforesaid,  and  take 
his  receipt  therefor.    These  provisions  do  not  exempt  any  officer  or 
his  sureties  from  liability  on  his  official  bond,  for  any  neglect  or 
other  default,  in  regard  to  the  funds  mentioned.4 

£  660.  Personal  examination  ot  injured  party. 

The  riirht  to  require  an  injured  party  plaintiff  to  submit  to  an 
examination  by  experts  appointed  by  the  court,  so  as  to  enable  such 
experts  to  testify  as  to  the  extent  and  character  of  his  injuries,  has 
never  been  positively  decided  by  the  courts  of  this  state,  and  the 
power  has  been  expressly  denied  by  some  of  the  judges.*  It  is  said 

1  Fowl,  r  \.  Morrill,  8  T.  15&     But  it  appears  from  this  case  that  there  is  no 
presumption  that  one  who  is  not  aa  attorney  at  law  had  auth<  r: 
service  .if  process  for  a  party. 

>  Rule  50. 

»  Kohn  v.  Washer,  09  T.  6?  (6  &  W.  Re|>.  Ml>. 

« R  s.  i  M;-J  no  i.    A  judgment  afatnt  a  party  whiohl  "unt 

paid  liy  him  into  r«urt,w..i  k-  n«i  prrjii'li<  «•.  «.m.-,-  tin*  amount  may  be  appl 

the  p;irtv  in  reduction  of  tin-  judgment.     S^  >-«>  Hldtf.  &  L.  A»'n. 

ae  a  \v. 

In  (•;!>••   of  litigation   ufM»n   a   moiu-y  -I. -mand.  tin-   pn-jx-r  mod'  "g  » 

tend'-r  i- ''\   p;iyinc  into  court  t  lie  amount  due.     <  Horn  \  •'•  T.  281. 

HutHi-r.  -.1  T.  :K"  (U  s.  \V.  : 


620  MISCELLANEOUS    QUESTIONS   OF    PRACTICE.        [§§  GC1,  0(52, 

that  if  the  power  exists  at  all,  it  should  never  be  exercised  except 
in  cases  in  which  the  ends  of  justice  demand  it.1  If  the  power  may 
be  exercised  in  any  case,  it  should  be  by  the  appointment  by  the 
court  of  one  or  more  disinterested  experts,  either  of  its  own  selec- 
tion or  such  as  may  be  agreed  upon  by  the  parties,  but  plaintiff 
should  not  be  required  to  submit  to  an  examination  by  a  person  for 
whom  he  has  an  aversion.2 

§  661.  Suits  on  contracts  with  or  for  a  county. 

All  notes,  bonds,  bills,  contracts,  covenants,  agreements  or  writ- 
ings, whereby  any  person  is  bound  to  any  county,  or  to  the  court 
or  commissioners  of  any  county,  or  to  any  other  person  or  person?,, 
in  whatever  form,  for  the  payment  of  any  debt  or  duty  or  the  per- 
formance of  any  matter  or  thing  to  the  use  of  any  county,  are  valid 
and  effectual,  to  ail  intents  and  purposes,  to  vest  in  such  county  all 
rights,  interests  and  actions  which  would  be  vested  in  any  individ- 
ual if  any  such  contract  had  been  made  directly  to  him;  suits  may 
be  commenced  and  prosecuted  on  such  notes,  bonds,  etc.,  in  the 
name  of  such  county,  or  in  the  name  of  the  person  to  whom  they 
were  made,  for  the  use  of  the  county,  as  fully  and  effectually  as  any 
person  may  or  can  sue  on  like  notes,  bills,  contracts,  covenants^ 
agreements  or  writings  made  to  him.3 

§  662.  City  not  required  to  give  bond  or  security. 

When  a  city  which  has  accepted  the  provisions  of  title  18  of  the 
Revised  Statutes  (relating  to  cities  and  towns)  is  a  party  to  any 
suit  or  proceeding,  it  is  not  required  that  any  bond,  undertaking 
or  security  be  executed  in  behalf  of  such  city,  but  all  such  ac- 
tions, suits  and  proceedings  will  be  conducted  in  the  same  manner 
as  if  such  bond,  undertaking  or  security  had  been  given ;  and  for  all 
the  purposes  of  such  actions  the  city  will  be  held  liable  in  the  same 
manner,  and  to  the  same  extent,  as  if  the  bond,  undertaking  or.  se- 
curity in  ordinary  cases  had  been  duly  give  and  executed.4 

1 1.  &  G.  N.  Ry.  Co.  v.  Underwood,  64  T.  463;  Mo.  Pac.  Ry.  Co.  v.  Johnson,  72 
T.  95  (10  S.  W.  Rep.  325);  G.,  C.  &  S.  F.  Ry.  Co.  v.  Norfleet,  78  T.  321  (14  S.  W. 
Rep.  703). 

-'  Mo.  Pac.  Ry.  Co.  v.  Johnson,  72  T.  95  (10  S.  W.  Rep.  325).  In  G.,  C.  &  S.  F.  Ry. 
Co.  v.  Nelson,  5  Civ.  App.  387  (24  S.  W.  Rep.  588),  it  is  held  that  it  would  not  be 
error  to  refuse  to  require  an  injured  patient  to  submit  to  a  physical  examina- 
tion respecting  the  extent,  character  and  permanency  of  his  injuries,  by  a  phy- 
sician named  by  the  defendant  railway  company;  it  is  left  undecided  whether 
the  court  should  in  any  case  require  a  plaintiff  to  submit  to  such  examination. 

a  R.  S.  795,  796. 

*  R.  S.  570. 


CHAI'TKU   XI. III. 


NK\V  TRIAL  AND  AKRF.sT  OF  JfDGMHNT. 


§  675.  Various  grounds  of  motion  for 

new  trial. 

676.  Newly-discovered  evidence. 
C77.  Surprise  may  be  ground  for  new 
trial. 

678.  Absent  t.  -timony. 

679.  Absence  of  a  party  or  his  coun- 

sel 

680.  Error  in  the  charge  of  the  court. 

681.  Testimony  illegally  admitted  or 

excli 

682.  Verdict   not  supported  by  evi- 

dence. 

68a  Verdict    contrary   to   the    evi- 
dence. 

684  \  ntrary  to  law. 

685.  Excessive   or  inadequate  dam* 


§  663.  Granted  on  motion;  grounds  to 
be  specified. 

664.  New  trial  will  be  granted,  when. 

665.  Judgment     may    be    arr» 

when. 

666.  Time  of  making  motion. 

667.  To    be  determined  during  the 

term. 

668.  Not  more  than  two  new  trials, 

except,  etc, 

•6V.  :y  of   motion    for   new 

trial. 

670.  Reference  to  alleged  errors. 

671.  Where  the  trial  is  l.y  the  court. 

•uent  of  pleadings. 
673.  Effect  of  order   granting  new 
trial. 

itfidavits. 

.-'  663.  Granted  on  motion;  grounds  to  be  specified. 

A-  trials  may  be  granted,  and  judgments  may  be  set  aside  or 
arrested  on  motion  for  good  cause,  on  such  terms  and  conditions  as 
the  court  shall  direct.1  Every  such  motion  must  !»••  in  writing  and 

*R  !-  '<irt  may  grant  a  new  trial  on  payment  of  coats  without 

•t   of  th.-  party  who  makes  the  motion.     II  . 

See  Clifton  v.  Lill,-y.  rj  T.  i:;«i  v.  Best,6T.  199;  Gorman  v.  McFarlund.  13 

:   H-rn-lon  v.  Kir,-.  -.'I  T. 

The  order  granting  a  new  trial  HUM  be  absolute.    It  may  impose  term*  or 
conditions,  hut  if  l.y  the  t«-rms  ,,f  the  order  th,-  j  -  tostand  unlew  and 

until  th»-  applicant  performs  the  conditions  nu|.. -.   I.  UM  •  >r.l. r  :*  n  nullity.    The 
a*  and  cotnliti»i<*.  ;\-  u->-d   in  th.  •  nn  v. 

Railway  <  s.  \V.  I;.  •',  T.  1«9;  Gorman  v. 

i  la nd.  i:$  T.  -,':::.     The  following  or,|,-r  is  held  Mirli.-ient:     "Thecouitbof 
pinion  that   a  new  trial  should  U-  decreed  I 

roiirt  tli.-it  •!•  -f.  ii'hi:  tor  a  new  trial  be  and  the  same  is  hereby  grunted 

and  judgment  vacated.     It  is  fmth.-r     .     .     .     d,-cr>-ed   th.it   defendant   |«y  all 
costs  «  ndanceat  this  t>  rm  whotestii  <-au»e.  as  a  con- 

dition TI|M.H  which  ;i,  isawarde«l."     F.-nn  v.  Railway  Co.. 

«0(18S.W.  l:  ^>r»len,»a  W.  Rep.  llOa 

An  ord-r  that  th»-  appli  n-.n  of  this  term  of  court,  pay  all 

costs  of  court  that  have  arcrued  during  tlif  i  -date; 

otherwis..  s;1id  jud^m- -nt  t--  r, m.un  in  full  force  and  effect,"  is  a  nullity.    Bar- 
grave  v.  Boero,  23  S.  \\'. 

On  the  hearing  of  u  motion  fora  new  trial,  the  judge  announced  that  the  new 


022  NEW    TRIAL    AND    AKKEST    OF    JUDGMENT,  [ 

signed  by  the  party  or  his  attorney,  and  must  specify  the  grounds 
upon  which  it  is  founded ;  and  no  grounds  other  than  those  speci- 
fied will  be  heard  or  considered.1 

A  motion  in  arrest  of  judgment  cuts  off  a  motion  for  a  ne\v  trial, 
and  thereafter  a  motion  for  a  new  trial  is  too  late.2  But  a  motion 
"  to  arrest  and  set  aside  the  judgment"  will  be  treated  as  a  motion 
fora  new  trial,  where  it  assigns  such  grounds  only  as  are  proper  in 
a  motion  for  a  new  trial,  and  are  not  proper  in  arrest  of  judgment,3 

£  664.  New  trial  will  be  granted,  when. 

Whenever,  during  the  progress  of  a  cause,  irregularities  or  errors 
have  occurred,4  in  consequence  of  which  the  justice  of  the  case  has 
not  been  attained  by  the  verdict  of  the  jury,5  a  new  trial  will  be 

trial  would  be  granted  or  the  judgment  reformed,  and  the  opposing  party  as- 
sented to  the  new  trial.  This  was  not  error.  Barton  v.  American  Nat.  Bank, 
8  Civ.  App.  223  (29  S.  W.  Rep.  210). 

1  R.  S.  1371.    Where  a  motion  was  filed  within  the  time  provided  by  law, 
it  was  error  to  refuse  to  consider  an  amended  motion  setting  up  additional 
grounds  and  filed  nine  days  after  the  trial.    Bell  v.  Wallnitzch,  39  T.  132,  citing 
Sweeney  v.  Jarvis,  6  T.  36.     And  see  Dowell  v.  Winters,  20  T.  793. 

Where  a  motion  for  a  new  trial  was  made  on  the  ground  that  the  verdict  was 
contrary  to  the  law  and  the  evidence,  and  was  overruled,  it  was  held  that  the 
judgment  should  not  be  reversed,  although  the  damages  were  excessive,  as  that 
ground  had  not  been  specified  in  the  motion.  Hillebrant  v.  Brewer.  6  T.  45; 
King  v.  Gray,  17  T.  72;  Ellis  v.  McKinley,  33  T.  675.  But  where  the  verd:ct  is  nf 
such  a  character  that  no  legal  judgment  can  be  entered  upon  it,  as  where  the 
jury  return  a  void  verdict,  or  a  verdict  finding  not  the  issue,  but  a  matter 
totally  foreign  to  the  issue,  a  new  trial  may  be  granted,  although  such  ground 
was  not  specified  in  the  motion.  Sweeney  v.  Jarvis,  6  T.  36.  Whether  an  ap- 
plicant for  a  new  trial  has  a  good  defense  is  to  be  determined  by  the  court,  and 
the  motion  must  set  'out  clearly  in  what  the  defense  consists.  Yarborough  v. 
Downes,  1  App.  C.  C.,  §  676. 

2  Hipp  v.  Ingram,  3  T.  17. 

3  Salinas  v.  Wright,  11  T.  572. 

4  Where  to  an  action  on  a  note  the  defendant  pleaded  the  general  issue,  and 
judgment  was  rendered  by  default  as  if  no  plea  had  been  filed,  it  was  held  that 
the  defendant  should  have  moved  for  a  new  trial,  or  to  set  aside  the  judgment, 
and  having  failed  to  do  so,  he  could  not  make  the  objection  in  the  supreme 
court.     Robinson  v.  Mattison,  25  T.  Sup.  451.     In  McKaughan  v.  Harrison,  25  T. 
Sup.  461,  the  defendant  pleaded  in  an  action  on  a  promissory  note  a  special  plea 
impeaching  the  consideration,  and  also  a  general  denial.    The  cause  was  sub- 
mitted to  the  court,  and  an  exception  to  the  "answer"  having  been  sustained, 
the  judgment  was  reversed  because  the  court  had  disregarded  the  plea  of  gen- 
eral denial. 

Where  a  party  stands  by,  in  the  court  below,  and  without  making  any  objec- 
tion suffers  the  court  to  err  as  to  a  matter  of  fact,  as,  for  instance,  to  render  a 
judgment  by  default,  under  a  misapprehension  that  no  answer  had  been  filed, 
and  fails  afterward  to  move  the  court  to  correct  the  mistake,  he  cannot  take 
advantage  of  such  error  on  appeal.  Hopkins  v.  Donaho,  4  T.  336;  Pierson  v. 
Burney,  15  T.  272;  Allen  v.  Traylor,  31  T.  124. 

5  Where  a  jury  has  been  waived,  and  the  case  submitted  to  the  court,  a  motion 
for  new  trial  is  not  necessary  to  entitle  the  plaintiff  in  error  to  a  revision  of  the 
judgment.    Bell  County  v.  Alexander,  22  T.  350. 


§664.]  M  \\    n:i\i    \  ;-To 

granted.1     While  application-.  f<»r  new  trials  an-  t<»  a  • 
addressed  to  the  sound  discretion  of  the  judge  who   presided  at  the 
trial,  yet  th.-  .-  of  that  discretion  is  ^..v.-nii-d  b\   l.-_;d  rules; 

and  the  judgment  of  the  court.  ivtHxin^  ;l  n,.u  lrjait  js  M1|,j, 
the  revision  of  the  appellate  court.     In  a  case  where  a  neu 
has  been  granted,  and  tin-  second  trial  has  resulted  adversely  to  the 
party  who    was  successful  on    the   lir>t    trial,  the  judgment   of  the 
court  may  be  revised  and  the  Hist  v.-rdict  and  judgment  reins: 
upon  a  clear  showing  that  the  new  trial  was  granted  in  violation  of 
law.     Kven  if  a  new  trial  has  been  erroneously  granted,  the  error 
is  not  the  subject  of  revision  on  appeal,  except,  perhaps,  in  a  strong 

"NVhere  a  party  in  his  application    fora  new  trial   brings  himself 
within  the  established  rules  of  law  and  the  principles  of  adju< 
cases,  he  is  entitled   to  a   new  trial  as  a  mat;  ..lit.1     Ti 

quiry  upon  appeal  is,  not  whether  upon  the  evidence  upon  the  rec- 
ord it  might  apparently  have  been  proper  to  grant  the  application  in 
the  particular  case,  but  whether  the  refusal  of  it  has  involved  the 
violation  of  a  clear  h-iral  riirht  or  a  manifest  abuse  of  judicial  dis- 
cretion.4 

The    supreme   court    admonishes   the   trial   courts   to   relax    the 
rigor  of  their  practice  in  respect  of  new  trials.'1     The  rules  of  the 
appellate  courts  are  founded  on  the  assumption  that  the  jud^. 
fore  whom  a  case  was  tried  has  acted  in  the  e\ei,  'iion-  lib- 

eral discretion  than  the  appellate  court  can  indulge,      lie  <,bv, 
the  manner  of  the  witnesses  in  testifying,  to  aid  him  in  judging  of 
their  credibility.     The  trial  court  should  grant  a  new  trial  I 
satisiied  that  injustice  has  been  done;   otherwise  in  many  cases, 
where  from  an  inspection  ..f  the  record  by  the  appellate  court  ' 
appears  evidence  to  sustain  the  verdict,  and  n<>  can  be  had. 

injustice  may  be  done  by  local  prejudice  and  other  causes  which 
the  district  court  should  have  prevented.4 

1  Wht-n  *«-Y,-r:il  persons  are  sui-'l  for  tr« -|  ;t-v  an-l  the  plaintiff  obtains  a 

i gainst  OIH-,  iiinl  the   nthi-r-.  uhtain   :i  \.-r.ln-t  :i^;iuixt  pljiti.; 
may  In-  ^rant'-l  a-  t<.  nut-,  and  nut  as  to  tin-  i.th.-i 
J  ffvb,  f.  T.  M:  Hughes  v.  Ma  ' 

i. -in.  1  A  i  •"«. 

»Hilt)urn  v.  II  ,rn-.  •„•  fix.    \, 

31.     Applicati..i.s  I,:,-.-,!  IIM  th,-  k'r..un,|  that  th.-  party  wa»  misled  by  - ; 
of  the  it|»|Hisit.-  |.;irty  as  t.i  tin-  tun.-  of  tl  M.UIP!   d 

:  tl..-  (MUM.     i:..iis  r,  QmUowaj,  :    Lpp 

•J  Ap;  M9.    The  action  of  th.-  ,  ..urt  in  r.-fiisin«  u  n.-xv  trial  is  reriiied  on 

appeal,  not  th,-  r,-as..ns  u[H.n  \\hi<-h  th,-  a«-tion  was  baaed.  Ualvecton  v.  Uem- 
mia,  ?',»  T.  SMdl  s.  \V.  H,-p.  W). 

«  Abies  v.  Donley,  8  T.  :: 

»Vun  Hart. -n  v  <  oun  -.t-.n  v.  Forrester,  35  T.  584. 

•O..  H.&S,  A.  Uy.  1.71. 


t>*2-i  ::E\V   TRIAL   AND   ARREST   OF   JUDGMENT.  [§  665. 

£  6^5.  Judgment  may  be  arrested,  when. 

Judgment  may  be  arrested,  upon  motion,  for  any  matter  intrinsic 
upon  the  face  of  the  record,  amounting  to  a  defect  which  could  be 
reached  by  general  demurrer,  and  for  which  a  writ  of  error  would 
lie.1  It  is  not,  however,  every  defect  which  would  have  been  a 
fatal  objection  on  demurrer  that  can  be  reached  by  a  motion  in 
arrest  of  judgment;  if  the  issue  joined  be  such  as  necessarily  re- 
quired, on  the  trial,  proof  of  the  facts  so  defectively  or  imperfectly 
stated,  such  defect,  imperfection  or  omission  is  cured  by  the  ver- 
dict.2 But  if  the  plaintiff,  in  his  petition,  either  state  a  defective 

12  Arch.  Pr.  280;  Denison  v.  League,  16  T.  399.  The  statement  of  a  fact,  as 
that  the  defendant  is  a  feme  covert,  in  a  motion  in  arrest  of  judgment,  which 
.ought  to  have  been  pleaded,  comes  too  late,  and  cannot  be  noticed.  Phelps  v. 
Brackett,  24  T.  236.  An  objection  that  there  was  no  citation,  as  required  by 
Jaw,  served  upon  the  defendant,  or  that  a  judgment  by  default  could  not  be 
correctly  or  legally  rendered  in  the  case  without  a  writ  of  inquiry,  with  other 
matters  which  might  have  been  a  valid  defense,  are  held  not  sufficient  to  arrest 
the  judgment.  Heath  v.  Fraley,  50  T.  209. 

The  purpose  of  a  motion  in  arrest  is  to  present  to  a  court  after  trial  such  mat- 
ters as  before  trial  might  have  been  presented  by  demurrer.  It  calls  in  ques- 
tion the  sufficiency  of  the  averments  of  the  pleading  to  entitle  a  party  to  the 
relief  which  he  seeks,  and,  if  the  petition  would  be  good  on  demurrer,  the  mo- 
.tion  is  properly  overruled.  Machon  v.  Handle,  66  T.  282  (17  S.  W.  Rep.  477); 
Hurley  v.  Birdsell,  1  App.  C.  C.,  §  1184;  Johnson  v.  Bowling,  1  App.  C.  C.,§  1098. 
Where  no  action  is  shown  to  have  been  taken  before  trial  on  the  general  de- 
murrer, it  may  be  availed  of  on  motion  in  arrest  of  judgment.  McCall  v.  Sulli- 
van, 1  App.  C."  C.,  §  1 ;  Bradshaw  v.  Davis,  12  T.  345. 

A  motion  based  upon  the  ground  that  the  evidence  shows  that  the  amount 
of  an  account  with  which  a  party  is  properly  chargeable  is  not  within  the  ju- 
risdiction of  the  court  is  properly  overruled;  the  defect  is  not  apparent  on  the 
record.  Sanger  v.  Ker,  1  App.  C.  C.,  §  1083. 

If  a  petition  be  sufficient  to  authorize  the  relief  granted,  mere  inconsistencies 
will  not  support  a  motion  in  arrest.  An  objection  for  non-joinder  of  parties 
comes  too  late  on  motion  in  arrest  of  judgment  (Perez  v.  Everett,  73  T.  431);  as 
that  the  husband  was  not  joined  with  the  wife  in  a  judgment  against  her.  Hab 
v.  Johnston,  1  App.  C.  C.,  S  628. 

*De  Witt  v.  Miller,  9  T.  239;  Johnson  v.  Bowling,  1  App.  C.  C.,  §  1093;  Hurley 
v.  Birdsell.  1  App.  C.  C.,  §  1184;  Tex.  &  Pac.  Ry.  Co.  v.  McCoy,  3  Civ.  App.  276 
(22  S.  W.  Rep.  926).  In  an  action  by  the  state,  based  upon  bond  given  by  one 
McF.,  and  the  defendant  as  his  surety,  conditioned  for  the  appearance  of  McF. 
at  the  next  term  of  the  district  court,  on  a  charge  of  burglary,  there  was  no 
allegation  in  the  petition  that  McF.  had  ever  been  indicted,  and  the  breach  of 
the  bond  was  charged  in  general  terms,  that  the  conditions  of  the  bond  were 
not  complied  with  by  McF.,  nor  has  he  ever  made  his  appearance  up  to  the  pres- 
ent time.  The  defendant  answered  by  a  general  demurrer,  which  was  not  acted 
on  by  the  court,  and  by  a  general  denial  and  the  statute  of  limitations.  There 
was  a  verdict  and  judgment  for  the  state.  The  error  assigned  was  that  the  pe- 
tition disclosed  no  cause  of  action,  there  being  no  allegation  that  McF.,  the 
principal  in  the  bond,  had  been  indicted;  but  it  was  held  that  the  fact  that  he 
had  been  indicted  was  involved  in  the  issue  submitted  to  the  jury,  and  must 
have  been  found  by  them,  before  they  could  give  their  verdict  for  the  state. 
McClellan  v.  State,  22  T.  405.  An  answer  in  a  suit  on  a  note,  setting  up  a  fail- 
ure of  consideration,  was  objectionable,  inasmuch  as  it  did  not  directly  deny 


*>.]  .M>    ARKEST    OF    JL'IX.N! 

title  or  totally  omit  to  state  any  title  or  cause  of  action  whatever, 

a  \vrdi. -i  will  not  cure  the  defect.1     If  an  ambiguous  expression  is 

used  in  the  petition,  it  is  cured  by  \-  -id  must  be  taken  to 

been  used  in  that  sense  which  would  sustain  the  verdict.1   And 

,es  and  i  If  fee  ts  in  the  petition  are  sometimes  cured  by  the 

53  of  the  opposite  party.1 

notion  in  arrest  of  judgment  ing  the  sufficiency  of  the 

petition  will  be  determined  by  the  sutli  .f  the  allegations 

made  in  it,  and  evidence  avoiding  such  allegations  cannot  be  con- 

?  666.  Time  of  making  motion. 

All  motions  for  ne\v  trials,  in  arrest  of  judgment,  or  to  set  aside  a 

•nent,  must  be  made  within  two  da  the  rendition  of 

lot,  it  the  term  ol  the  court  shall  continue  so  long;  if  not,  then 

before  the  end  of  the  term.5     It  has  been  held  that  this  provision  of 

-  mandatory,  and  must  be  obeyed  by  the  court  as  well 

as  by  partii-s;  that  a  final  judgment,  after  the  expiration  of  the  time 

limited,  cannot  be  disturbed  except  by  an  apj>eal  or  an  original  pro- 

ferdinn-  in  .-.juity.6     If  the  motion  is  not  tiled  within  the  specified 

time,  the  opposite  party  is  not  required  to  take  notice  of  it,  because 

S  not  required  or  supposed  to  remain  in  court.7     It  is  also  held 

that  it  is  a  matter  within  the  discretion  of  the  court  whether  it  will 

tain  a  motion  which  is  not  entered  within  the  time  required  by 

;iintilT's  a{)|x.iiitiiicnt  as  administrator,  and  in  failing  to  state  the  farts 
<•. instituting  the  fraud  charged  on  the  phuntitr,  an<l  omitting  directly  and  ipe* 
y  to  offer  back  to  the  plaintiff  all  title  or  possession  of  the  land  acquired 
ov  tip-  purchase.  If  special  exceptions  had  been  taken  on  account  of  these  inv 
perfections,  they  would  have  been  sustained.  But  these  defects  were  not  reached 
by  a  general  demurrer;  and  inasmuch  as  the  answer  laid  a  sufficient  predicate 
for  til--  a  lini— ion  of  all  the  evidence  necessary  to  establish  a  good  defense,  the 
defects  wouM  liavt-  been  cured  by  a  v,rii«-t.  Williams  v.  Warnell,  98  T.  610, 
The  want  of  an  averment  of  the  value  of  th.-  alleged  to  hare  been 

taken  and  <-.mv.Tt.-d  i>  run-d  t.y  v.-i.ii<-t  it'art.T  v.  Wallace,  2  T.  S08X  although 
•  >f  the  value  would  not  have  been  admi--il>l>-  if  it  had  U-«-n  objected 
to.    Gillies  v.  Wofford,  28  T.  76.     A  plradin.  '-y  the  v, -rdirt  wl. 

-in -h  that  it    is   t<.    •  ,.-.1  that  tli«-   jud^'*   would  not  hare 

•,.,1  th-  Jin  tin-  jury  would  ix. t  have  gi Ten  it. 

tt«-«lall..  But  a  w  .H  not  cure  the 

mtive  allegation.    Schuster  v.  Frendenthal 
W.  Reft  ' 

ISta  Ni.-h.ils.  '*>  T.  14.1;   Hurh-y  v.  Uir-ls  -11.  1  Anp.  C  C,  §  1 

«  Gould's  PI.  - 

»Au  171. 

Ml  :'.»S.  W.  R<-p.  1 

»K. 

,  1  v.  Ho,L  •«  v.  UcClaren,  11  T.  107 ;  Wells  T.  Mel* 

vill.-. 

i  Bell  v.  \Valii.it/.-h, :{'.'  II  v.  Kodgcrs,  87  T.  688;  Marcus  r.  Hetnphill, 

\  Api 


62G  NEW    TRIAL    AND    AKRKST    OF   JUDGMENT.  [§  GOT, 

the  statute,  and  that  its  aciion  will  not  be  revised;1  that  while  it  is 
competent  for  the  court  during  the  term,  for  good  cause  shown,  to 
hear  and  grant  such  a  motion,  its  refusal  to  grant  it  will  only  be 
revised  when  clearly  wrong.2  It  is  held  that  a  crurt  may  set  aside 
a  judgment  and  grant  a  new  trial  during  the  term,  upon  motion 
filed  after  the  lapse  of  two  days,  or  without  any  motion,  if  the  ends 
of  justice  require  it.3 

§  667.  To  be  determined  during  the  term. 

All  motions  for  new  trials,  in  arrest  of  judgment,  or  to  set  aside 
a  judgment,  must  be  determined  at  the  term  of  the  court  at  which 
they  are  made.4  Motions  for  new  trial  and  in  arrest  of  judgment 
must  be  determined  on  motion  day  of  each  week  of  the  term,  unless 
postponed  to  the  next  motion  day,  or,  for  good  cause  shown,  to  a 
subsequent  day,  and  not  later  than  two  entir.6  days  before  the  ad- 
journment of  the  court,  at  which  time  all  such  motions  previously 
filed  must  be  determined.5 

After  the  adjournment  of  a  term  of  court  at  which  a  final  judg- 
ment is  rendered,  such  judgment  is  no  longer  subject  to  the  control 
of  the  trial  court,  and  after  such  adjournment  a  new  trial  cannot  be 
granted,  no  matter  what  may  be  urged  in  its  favor.  If  the  party 
complaining  has  been  prevented  by  fraud,  accident  or  mistake  from 
making  his  defense,  his  only  remedy  is  by  a  new  suit  to  reopen  the 
case,  and  such  suit  has  all  the  characteristics  of  an  independent  ac- 
tion.6 An  order  of  the  court  granting  a  new  trial,  made  at  the  sec- 
ond term  of  the  court  after  the  rendition  of  the  judgment,  is  in 

1  Davis  v.  Zumwalt.  1  App.  C.  C.,  §  597,  citing  Aldridge  v.  Mardoff,  32  T.  205; 
Maloy  T.  State,  33  T.  599;  Gill  v.  Rodgers,  37  T.  628. 

-Linn  v.  Le  Compte,  47  T.  440.  citing  Puckett  v.  Reed,  37  T.  309;  Wood  v. 
Wheeler,  7  T.  16.  Motion  for  new  trial  was  overruled,  and  notice  of  appeal 
given  November  13.  On  November  15  an  amended  motion  for  new  trial  was 
filed,  based  upon  the  contents  of  depositions  tiled  by  the  defendant  on  Novem- 
ber 9.  It  was  held  that  the  action  of  the  trial  court  in  striking  out  said  amended 
motion  would  not  be  revised.  Conwill  v.  Railway  Co.,  85  T.  96  (19  S.  W.  Rep, 
1017).  That  one  motion  for  a  new  trial  has  been  overruled  is  not  a  sufficient- 
reason  for  resorting  to  a  new  suit  instead  of  filing  a  second  motion,  setting  up 
the  same  matters  relied  on  in  such  new  suit.  Bryerly  v.  Clark,  48  T.  345;  Puck- 
ett v.  Reed,  37  T.  308. 

A  motion  for  a  new  trial  made  within  two  days  after  the  execution  of  a  writ 
of  inquiry  is  in  time.  Roseboro  v.  Thompson,  1  App.  C.  C.,  g  19;  Edwards  v. 
James.  13  T.  52.  The  failure  to  file  a  motion  in  time  was  held  not  excused  by 
the  allegation  that  the  party  was  "too  poor  to  employ  other  counsel,  and  did 
not  succeed  in  getting  a  lawyer  on  that  account"  until  after  the  time  had 
elapsed.  Rice  v.  Scottish- American  Mortg.  Co.,  30  S.  W.  Rep.  75. 

3  Barton  v.  American  Nat.  Bank,  8  Civ.  App.  223. 

*  R  S.  1374. 

•  Rule  71. 

«  Eddleman  v.  McGlathery,  74  T.  280  (11  S.  W.  Rep.  1100);  Marcus  v.  Hemphill, 
1  App.  C.  C.,  §  1024. 


88.*] 

direct  violation  of  the  statute,  ami  is  void.     It  is  not  error  f«> 
court  to  vacate  such  void  order.1 

A  motion  fora  new  trial   not  bcinir  acted  upon  ii  !  bv 

ition  of  law  at  tin-  .-ml  of  the  term;-  it  will  l>e  ,  .  d  as 

r  abandoned.  ami  tin-  judgment  will  not  be  re\  .ant, 

-timony  to  warrant  the  ver-i 


Not  inoro  than  two  new  trials,  oxcopt,  etc. 

moiv  than  two  new  trials  will  In-  ^ranted  to  either  party  in 
-.line  cause,  --xcept  wlien  the  jury  i  n  puiltv  of  soin. 

conduct   or  liave  erreil    in    matter  of  law.4     This  is  \; 

;  that  where  the  court    has  committal  no  error,  either  in  rul- 
1  1  pon  the  trial  or  irivitiir   the   law  of  the  case  to  the  jurv.  and 
the  jury  have  followed  the  law  so  -.riven   and   have  not  been  '.'iiiltv 
ol  any  ni;-.-,  .nduet,  no  more  than  two  new  trials  can  !>«•  ^i 
either  party  :   hut  so  loiiy  as  the  trial   court    commits  en 
rulings  upon  the  trial,  or  in  giving  the  law  to  the  jury,  or  the  jury 
di-iv-ards  the  law  when   correctly   iriven,  and   the   trial  coin- 
proper   motion   ret'u-  ant  a  new  trial,  the   injured  party  on 

appeal  will  he  protected  against  any  errors  prejudicial  to  his  i 
l>y  having  the  judgment  reversed  and  obtaining  a  new  tri. 

i  Hartz-Il  v.  Jones,  2  U.  C.  560.    The  juris-lieti«.n  ..f  tli.-  <-<.int  to  «et  wide  its 
own  juil^>iifiit<  .-..lit  inn.-  .luring  the  term;  and  this  is  so  although  all  the  step* 

:  iU  ,|  by  the  -t.-itutr  f->r  tin-  |»-rt'.  •«  tidii  <,f  an  a-.|M-;il  h.,  .  k.-n  U-forw 

tli.-  dost-  of  th.-  t.-rni.     Blum  v.  "\\Yttermark,  "i"  T.  r.'">.     The  act  of  January  87, 

•.vhich  autliori/..--!  tin-  i»nancf  of  i  \.-<  ntion  un«l»-r  cin-niiiNtances  naimrf 

during  the  term.  eoiiM  not  oj>.-rate  to  ileprive  the  ili-tri'-t  cour'  -TPDt 

r  as  a  court  to  revise  ami  elian^i-  it-^  <>\\  n  action  and  or.;  ^  the 

t  a  new  trial  if  necessary,  notwiii  th«-  i^uai 

cuti'  •:  "f  the   court  aii'l  tin-  tart  that  a  n--\v  trial  h;i-l  Ut-n  r^ 

i  aii'l  noti'-i-  of  a|.]»-al  ^ivt-n. 

•-.  !.-•  T.  :M7:  McKean   v.  /ill  .97. 

498;  Buss  \.  II 

;th.  1  T.  TI>:   K,-vM..|.ls  v.  Will- 
Hart  v.  Ware,  b  T.I  I-'.:  Cain  I 

555.     V.'hrii  tin-  ju'lym.-nt  ha- 

trial.  l»-  -an-'    tip  -s.rli.-t   ITM    not    -ii|"|M.rt.  .1  l«\   th.-  .-M  I.  in-.-,  an-1   on  a  ttCQOd 

trial  th-    \-T-li.-t  of  tht-  jnry.  u|KHi  •  'lytln-sir  '--<l  «• 

did  th-  tir^-t.  tli-  a|.|»-llate  e.-nrt.  althoiiuh    unwilliiiK'  t"  di-tu: 

•  liet.  \vill  au'aii'  "•  jud«m»-nt.  if  the  cane  present   i 

ip|M.rt  tl  --n  v.  Hii: 

a  judgment  nj»on  a  second  v.-rdict  in  '  -.ime  party  wa*  rcTerwd1. 

u-hi-n  th.-  e,,urt  in  iri-tn:  the  jury  Mil.niitt.-d   i—u. 

lia.l  l».-n  no  evidence,  and  it  was  not   clear  that  th.-  jury  t 

\iiMin  v.  Talk.  •.'!•  T.   1«»:    Andr.  -u-   v.  S.n.t'  .t    th- 

fact    •  ha%-    U-.-n    --%-T.il    ...n.  un  .11  a  call*-   «ll. 

strongly  incline  th-  app-llat  ......  urt  against  4  the  last  one  r- 


628  NEW    TRIAL   AND   ARREST   OF   JUDGMENT.  [§  OC9. 

It  is  competent  for  an  appellate  court  to  reverse  and  remand 
notwithstanding  the  number  of  new  trials  allowed  by  law  had 
previously  been  granted  below.1  But  the  appellate  court  will  not 
award  a  new  trial  after  a  second  verdict  because  of  a  failure  of 
proof.2  The  error  is  in  matter  of  law  where  the  court  so  instructs 
the  jury  as  to  authorize  a  verdict  without  evidence  to  support  it, 
and  in  such  case  a  third  verdict  will  be  set  aside.3 

g  669.  Necessity  of  motion  for  a  new  trial. 

An  appellate  court  will  not  revise  on  the  ground  that  the  verdict 
is  not  supported  by  the  evidence  unless  there  was  a  motion  for  a 
new  trial  on  that  ground.4  An  objection  that  the  verdict  was  for 
a  less  amount  than  the  party  was  entitled  to  under  the  evidence 
must  be  set  up  in  a  motion  for  a  new  trial.  It  is  a  well-established 
rule  that  a  judgment  will  not  be  reversed  because  not  in  accordance 
with  the  evidence,  unless  there  has  been  a  motion  for  a  new  trial 
based  on  that  ground.5  This  is  believed  to  be  the  only  correct  rule, 
whether  viewed  from  the  standpoint  of  principles  of  correct  pro- 
cedure or  as  a  practical  means  of  attaining  the  ends  of  justice.  It 
is  to  be  presumed  that  if  the  verdict  is  not  supported  by  the  evi- 
dence the  court  in  which  it  was  returned  will  set  it  aside  upon  mc- 
tion ;  therefore,  a  proper  practice  demands  that  a  party  who  deems 
himself  aggrieved  by  the  finding  of  a  jury  should  exhaust  his  reme- 
dies in  the  trial  court  before  appealing  to  another  tribunal  on  the 
ground  of  error  in  the  verdict.  In  regard  to  the  rulings  of  the 
court  upon  exceptions  to  the  pleadings,  the  admission  of  evidence, 
and  in  the  giving  or  the  refusal  of  instructions,  a  different  rule  pre- 
vails. Having  once  acted,  it  is  not  to  be  presumed  that  the  judge 
will  change  his  ruling;  and  hence  in  order  to  appeal  from  such  ac- 
tion it  is  not  necessary  that  it  be  made  ground  for  a  new  trial.  But 
it  is  always  optional  and  proper  to  do  so.6  It  is  held  that  objec- 
tions to  the  charge  must  be  called  to  the  attention  of  the  court  in 
the  motion  for  a  new  trial.7 

it  is  the  finding  of  the  jury  upon  the  evidence,  unbiased  by  the  instructions  of 
the  court.     Austin  v.  Talk,  26  T.  127:  Wilson  v.  Gordon,  20  T.  568. 

1  Lucketts  v.  Townsend,  3  T.  119;  Austin  v.  Talk,  20  T.  164 

2  Duggan  v.  Cole,  2  T.  381. 

3  Randall  v.  Collins,  58  T.  231. 

4  Sunburn  v.  Murphy,  5  Civ.  App.  509  (25  S.  W.  Rep.  459);  Galbraith  v.  Town- 
«end,  1  Civ.  App.  447  (20  S.  W.  Rep.  943);  Putnam  v.  Capps,  6  Civ.  App.  610  (25 
S.  W.  Rep.  1024);  Cotton  v.  State,  29  T.  186;  Cain  v.  Mack,  33  T.  135;  Pyron  v. 
Grinder.  25  T.  Sup.  159. 

» Jacobs  v.  Hawkins,  63  T.  1;  Foster  v.  Smith,  1  T.  70;  Hart  v.  Ware,  8  T.  115. 

« Clark  v.  Pearce,  80  T.  146  (15  S.  W.  Rep.  787);  Daniels  v.  Creekmore,  7  Civ. 
App.  573  (27  S.  W.  Rep.  148). 

1  Hammond  v.  Garcia,  25  S.  W.  Rep.  823.  The  court  below,  in  rendering  judg- 
ment for  plaintiff,  erroneously  allowed  interest  at  eight  instead  of  six  per  cent., 


M:W    TRIAL   A*?D   ARREST   OF   JUDGMK  I  _".' 

The  rulings  on  motions  for  continuance,  for  the  change  of  \v 
anil  other  preliminary  motions  made  ami  filed  in  the  progress  of 

the  cause,  must  he  made  a  ground  of  objection  in  motions  for  new 
trial  or  in  arrest  of  judgment,  if  they  are  desired  to  be  relied  on  aa 
grounds  of  error.1 

£  670.  Reference  to  alleged  errors. 

Kaeh  ground  of  a  motion  for  new  trial,  or  in  arrest  <  f  judgment, 
must  brietly  refer  to  that  part  of  the  ruling  of  the  court,  d 
•riven  to  the  jury,  or  eharire  refused,  udmi»ion  or  rejection  of 
dence,  or  other  proceedings  which  are  designed  to  be  compL 
of.  in  such  way  as  that  the  point  of  objection  can  be  clearly  identi- 
fied and  understood  by  the  court.-     Grounds  of  objections  couched 
in  Lreneral  terms —  as  that  the  court  erred  in  its  char- 
inir  or  overruling  exceptions  to  the  pleadings,  and  in  excluding  or 
admitting  evidence,  the  verdict  of  the  jury  is  contrary  to  tu- 
deuce,  the  verdict  of  the  jury  is  contrary  to  law,  and  the  like—  will 
not  be  considered  by  the  court.* 

?;'  671.  Where  the  trial  is  by  the  court. 

When  the  case  is  determined  by  the  judge  without  a  jury,  coun- 
sel, in  making  a  motion  for  a  new  trial,  must  specify  succinctly  th« 
supposed  errors  of  law  or  fact,  or  both,  into  which  the  judge  has 
fallen,  as  far  as  may  be  practicable  to  do  so.4  Erroneous  conclusions 
of  fact  may  be  corrected  by  motion  for  a  new  trial,  luM.-d  on  the 
want  of  evidence  to  sustain  the  findings.* 

X  672.  Amendment  of  pleadings. 

Win-never  a  judgment  has  been  arrested  or  a  new  trial  granted 
because  of  the  insullicicncy  of  the  pleadings  of  tl  in  whose 

and  it  was  h.-M  that  :i  innti.-n   l.y  .Irfni.latit  f.>r    iu-w  trial.  ' 

en  this  point,  cnulil  not  In-  trvatril  a*  a  ti-tal  failiu.-  t«>  <•:;'.!  : 

tuth"   «-rn>r.  ami   <>n  appt-al   by  defendant  the  jnil^nirnt  \vnuM  be  rvforn 

plaintilf-  (X»t      HaUrll  v.  M  W.  |J.  ].. 

\Vht-rc  the  motion  fur  a  u«-\v  trial   is   n.-t   si-n.'.l.  ..nly  in;c 
in«  the  in. Tit-,  «(  tin-  controversy  will  U-  '  >•«,  18 

063. 
IRQ] 
iRn] 
«Rulf  r,s:  Suth.-rlan<l  v.  M.-Intir.-.  '>  S.  W.  K,  ,     ! 

\V.  ];.(..  l>.     \Vli.-n  n  motion  for  it  n.-w  t.  •nth* 

fltMind  thftt  thfl  .-vi.l.-nc,-  was   iiiMiHici.  nt   to  warrant   tin-   \.-r.lu-t.l.ut  t 

t  in  point  of  several  iuuiiat.  rial  pirti. 

-imply  that  the  court  err--,l  in  ..\t-rrulinj;  tin-  im-lion  f,,r  . 

tin-  a|-|»  llatr  c..urt  will  not  in.|uir«-  wh.-th.-r  th.-  •  :<>«u». 

tain  th.-  v.-r.lict  in  partii-ular-.  n-t  -tat. -I  in  tin-  motion  for  a  new  trial.     K 

•  Rule  69. 
||.:i  r.  N.'wuian,  67  T.  265  (3  S.  W.  Rep.  271). 


630  NEW    TRIAL   AND   ARREST   OF   JUDGMENT.        [§§  673,  074. 

favor  the  judgment  was  rendered,  the  court  may  allow  the  plead- 
ings to  be  amended  as  if  no  trial  had  been  had  or  judgment  ren- 
dered.1 If  the  plaintiff  should  decline  to  amend,  the  suit  would  be 
dismissed  as  on  demurrer.2 

§  673.  Effect  of  order  granting  new  trial. 

The  granting  of  a  new  trial  reinstates  the  cause  upon  the  docket 
as  though  no  trial  had  been  had,  and  the  court  has  no  authority  at 
a  subsequent  term  to  entertain  a  motion  to  set  the  order  aside,3  al- 
though it  may  have  been  improperly  granted ; 4  and  if  the  motion 
to  set  aside  the  order  be  sustained,  the  case  may  still  be  reinstated 
for  trial  on  motion  made  at  a  subsequent  term.5  The  effect  of  an 
order  granting  a  new  trial  on  the  motion  of  one  only  of  several 
parties  who  are  jointly  and  severally  sued  is  to  vacate  the  judgment 
formerly  rendered  as  to  all  the  defendants.6 

§  674.  Counter-affidavits. 

In  passing  upon  a  motion  ior  a  new  trial  the  discretion  of  the 
court  is  more  enlarged  when  the  motion  is  based  upon  matters  de- 
hors  the  record  and  is  supported  by  the  affidavit  of  the  interested 
party  alone.  The  practice  of  presenting  counter-affidavits  generally 
would  not  be  recognized,  but  it  is  held  that  where  the  matters  com- 
plained of  do  not  appear  of  record  there  is  no  reason  why  the  court 
should  not  inform  itself  by  affidavit  and  counter-affidavit.  No  in- 
convenience has  resulted  from  the  use  of  such  affidavits  in  criminal 
practice  on  the  question  of  negligence  or  not  in  moving  for  a  new 
trial,7  and  the  same  practice  is  recommended  to  a  limited  extent  in 
civil  cases.8  Counter-affidavits  may  be  used  to  impeach  the  credi- 

1R.  S.  1190.  On  the  4th  of  February  judgment  by  default  was  rendered 
against  the  defendant.  The  defendant  moved  to  arrest  the  judgment  on  the 
same  day.  and  on  the  16th  of  February  the  motion  was  sustained;  the  plaintiff 
having  amended  his  petition,  a  second  judgment  was  rendered  on  the  same  day, 
.and  it  was  held  that  there  was  no  error.  Eakins  v.  Groesbeck,  24  T.  179. 

2Denison  v.  League,  16  T.  399. 

3  San  Antonio  v.  Dickman,  34  T.  647,  citing  Secrest  v.  Best,  6  T.  200,  and  Gor- 
man v.  McFarland,  13  T.  237. 

*  Wells  v.  Melville,  25  T.  337. 

5 San  Antonio  v.  Dickman,  34  T.  647. 

«  G.,  C.  &  S.  F.  Ry.  Co.  v.  James,  73  T.  12  (10  S.  W.  Rep.  744).  Where,  in  tres- 
l>:is>  to  try  title,  plaintiff's  motion  for  a  new  trial  is  sustained  as  to  some  of  the 
defendants  and  overruled  as  to  others,  this  has  the  effect  of  granting  a  new 
trial  as  to  all  the  defendants,  and  the  case  then  stands  on  the  docket  as  though 
there  had  been  no  trial.  Parker  v.  Adams,  2  Civ.  App.  357  (23  S.  W.  Rep.  357). 
The  case  of  Roberts  v.  Heffner.  19  T.  130,  does  not  state  a  different  rule.  Woot- 
ters  v.  Kauffman.  67  T.  488  (3  S.  W.  Rep.  465).  And  see  Martin  v.  Crow,  28  T. 
614;  Holme  v.  Jones,  6  T.  242. 

7Dignowitty  v.  State,  17  T.  521;  Augustine  v.  State,  20  T.  450,  cited;  also 
Reynolds  v.  State,  7  App.  516. 

8  Davis  v.  Ransom,  17  T.  33d.    It  is  held  that  where  the  ground  of  such  motion 


§  075.]  NK\V   TRIAL   AND   ARREST  UK   JUlXiil  '.'.1 

Ijility  of  a  witness  ivlicd  on  t<>  u-.,tii'y  in  alleged  newly -discovered 
evidence.1 

£  675.  Various  grounds  of  motion  for  a  new  trial. 
The  |>rim-i|»ul  ^n.iimls  of  ;i  motion  fora  new  trial  are:  The  mis- 
rmidiu-t  ..f  the  pivvailinir  party; -'  the  misconduct  of  the  jury  ;•  sur- 

of  the  judge;1  that  the  verdict  is  against 

is  an  assert nl  violation  of  a  verbal  agreement  not  to  try  the  case  in  the  abwnce 
of  the  adversary,  an  agreement  which  under  the  rules  of  court  should  have  been 
in  writing,  counter -atli'lav  its  may  he  receive,!  setting  forJi  the  |>ur|K>rt  of  that 
agreement  as  understood  by  the  opposing  jwrty.  See,  also,  Hannah  v.  Chad- 
wick.  -J  App.  i  .  t '..  x  r.p.i.  where  the  applicant  alleged  that  he  was  misled  bjr 
neiit-  of  i.  iry  as  to  the  time  of  trial,  and  the  latter  answered  with 

a  counter  atli,la\  it.     And  see  Fears  v.  Albea,  09  T.  43?  (8  a  W.  Rep.  886V 

i  H.  &  T.  C.  Ry.  Co.  \.  Foi-\  tl..  Hi  T.  171.  citing  Conradt  v.Sixbee.  21  Wia.883; 
Williams  v.  Baldwin,  is  Johns.  489,  and  other  cases. 

-  \  breach  of  a  juirol  agreement  to  set  a  case  for  a  future  day  of  the  term,  by 
pressing  a  trial  when  the  case  is  reached,  and  before  the  day  set,  does  not.  of 
itself,  present  a  ground  for  a  new  trial    Bryorly  v.  Clark,  48  T.  845.    Where 
a  breach  of  an  agreement  to  postpone  is  alleged,  it  will  be  presumed,  in  the  ab- 
sence of  a  showing  to  the  contrary,  that  the  party  went  into  tiie  trial  volun- 
tarily.    Linn  v.  I.e  Coinpte,  47  T.  440. 

3  Separation  of  the  jury  not  a  ground  for  a  new  trial  (Edrington  r.  Ktger.  4 
T.  89;  Burns  v.  Paine,  8  T.  159);  nor  that  some  one  conversed  with  a  juror  while 
they  had  a  case  under  consideration  (Ellis  v.  Ponton,  83  T.  484);  but  it  i- 
that  conversation  by  plaintiff  with  a  juror,  outside  of  the  court  room,  after  all 
the  evidence  is  in,  is  a  ground  for  a  new  trial  (O.,  C.  &  S.  F.  Ry.  Co.  v.  Schroeder. 
25  S.  W.  Rep.  306):  but  it  must  be  shown  that  the  jury  were  probably  influenced 
to  the  injury  of  the  defendant.  W.  U.  TeL  Co.  v.  Pells,  2  App.  l 

AHi.lavit-  of  jurors  will  not  be  received  to  show  misconduct.    L  &  C».  N.  Ry. 

ion.  7-.'  T.  1 1  , 11  a  W.  Rep.  1033);  Wills  Point  Bank  v.  Bates.  72  T.  187 

(10  S.  W.  Rep.  :54s,;  I  .etcher  v.  Morrison,  79  T.  240  (14  &  W.  Rep.  1010);  Whitlow 

v.  Moore,  1  App.  C.  C.,  J;  1053;  NYwc,.mb  v.  Babb,  2  App.  C.  C.,  S  760;  Mason  r, 

Russell,  1  T.  7-Jl :  Han-lley  v.  I.ei^h.  8  T.  129;  Burns  v.  Paine.  8  T. 

It  i>  too  late  after  ver.iict  to  object  that  a  juror  was  not  a  freeholder  (Schuster 
v.  La  Londe,  57  T.  28):  or  that  he  was  not  summoned  by  a  sworn  officer.  New- 
man v.  l>.  ..l-oii.  «i  T.  91.  If  a  dis.jualiHcation  of  a  juror  was  discovered  during 
the  trial,  it  i-  too  late  to  urge  it  after  venlict.  Blanton  v.  Mayes,  78  T.  417  vlO 

a  \v 

*  \Vh.-n-  it  is  evi.lent  from  all  the  facts  attending  the  case  that  by  a  ruling  of 
the  court  in  the  progress  ,,t  tlie  trial  a  party  was  cut  off  from  trying  his  cast  on 
the  merit-,  tortitied  with  any  other  rit;ht.  though  in  .strictness  the  ruling  mar 

;-ct,  yet  if  it  is  made  to  appear  that  tlie  default  of  the  party  wa» 
n. .t  inexcusable,  and  he  presents  a  jn-inut  facie  case  on  the  merits,  he  ought  to 
IN- allowed  a  n.-u- trial.    Chambers  v.  Fisk,  15  T.  885,    This  rule  applies  wh 
appeal-  that  a  party  has  sulfen-d  injustice  by  I*  inn  refused  a  ContinUJin 
tl.oiuh  In-  -I  "\\  in-  %vas  not  sutlicient  in  la\\.     Il.iK-'Tty  v.  Scott,  10  T.  525;  Clul- 

. 

Where  a  party  applied  for  a  new  tiial  on  the  ground  that  the  court  refuaed 
t<>  po-t|M>tu<  the  case  t<>  ^ive  time  to  move  |.. r  a  continuance,  it  was  held  that 
-it  devolved    u|K,n   him  to  negative  the  i.l,  a  by  jilll.lnv  it  that  hi*  failure  to  a»k 
for  a  continuance  \iinler  a  s<\orn -i:it.n,,  M  • 
result  of  his  own  fault  or  neglect.  sup|«.rt.-d  by  affidavit  of  the  absent  witneM, 


C3iJ  NEW    TRIAL    AND   ARREST   OF   JUDGMENT.  [§  C7(>, 

the  law;  that  the  verdict  is  against  the  evidence;  that  the  damages 
are  excessive;  that  the  damages  are  manifestly  too  small;1  newly- 
discovered  evidence. 

Violation  of  the  rules  of  argument  may  be  a  ground  for  a  new 
trial,  as  where  counsel  states  or  assumes  facts  not  in  evidence,  with- 
out a  rebuke  from  the  court.2  An  application  to  set  aside  a  verdict 
and  judgment  where  there  is  no  error  in  law  is  an  equitable  appeal 
to  the  souritl  discretion  of  the  court.3  A  new  trial  would  not  be 
granted  in  any  case  wherein  the  original  proceedings  were  void  for 
want  of  jurisdiction.4  When  a  party  has  permitted  a  judgment  to 
be  recovered  against  him  by  his  own  negligence  or  laches,  a  new 
trial  will  not  be  granted.  Nor  has  a  want  of  knowledge  by  a  party 
of  facts  which  it  was  material  for  him  to  know  been  held  to  afford 
him  any  ground  for  relief,  when,  by  the  use  of  reasonable  diligence, 
he  might  have  known  such  facts.  In  such  case  the  question  is,  not 
what  the  party  knew,  but  what,  by  using  reasonable  diligence,  he 
might  have  known.5  If  a  party  is  not  prepared  to  go  to  trial,  he 
should  move  for  a  continuance  in  order  to  become  entitled  to  a  new 
trial.6 

"Where  it  is  apparent  that  the  jury  have  made  a  mistake  as  to  the 
facts,  the  appellate  court  will  award  a  new  trial.7  A  party  who 
risks  a  verdict  on  the  testimony  of  an  intoxicated  witness  is  not  en- 
titled to  a  new  trial.  The  condition  of  the  witness  would  have  been, 
a  good  ground  for  a  continuance.8 

£  676.  Newly-discovered  evidence. 

When  a  new  trial  is  applied  for  on  the  ground  oi  newly-dis- 
covered evidence,  it  must  be  shown  that  the  evidence  is  material,* 

if  it  could  be  procured,  as  to  the  facts  he  would  testify  to,  or  of  his  own,  of  such 
facts  as  said  witness  would  testify  to,  if  the  affidavit  of  the  witness  could  not 
be  procured  in  time.  Addington  v.  Bryson,  1  App.  C.  C.,  §  1293,  citing  Ward  v, 
Cobbs.  14  T.  304;  Spencer  v.  Kinnard,  12  T.  180;  Chilson  v.  Reeves,  29  T.  280. 
An  application  for  a  new  trial  because  of  the  refusal  of  a  continuance  must 
show  facts  constituting  a  meritorious  defense  which  applicant  was  prevented 
from  pleading,  and  such  statement  must  be  verified.  Hastings  v.  Winters,  26- 
S.  W.  R3P.  283. 

1  R.  S.  1452. 

2  G..  H.  &  S.  A.  Ry.  Co.  v.  Marsden,  1  App.  C.  C.,  §  1001. 

3  Clute  v.  Ewing,  21  T.  677. 

«  Clements  v.  City  of  San  Antonio,  34  T.  25. 

6  Power  v.  Gillespie,  27  T.  370. 

6  Devine  v.  Martin,  15  T.  25;  Cochrane  v.  Middleton,  13  T.  275. 

"  Basse  v.  Denniston,  39  T.  293. 

8  Land  v.  Miller,  7  T.  463.     • 

»  Johnson  v.  Flint,  75  T.  379  (12  S.  W.  Rep.  1120);  Hocker  v.  Day,  80  T.  529  (Iff 
S.  W.  Rep.  322);  Loonie  v.  Burt,  80  T.  582  (16  S.  W.  Rep.  439);  Eddy  v.  Newton, 
22  3.  W.  Rep.  533;  McCartney  v.  Martin,  1  U.  C.  143:  Davis  v.  Zumwalt,  1  App, 
C.  C.,  £  598.  Motion  for  new  trial  properly  overruled  where  the  newly-discov- 


"*>.]  NEW   TRIAL   AM»     \i:i: 

that  it   is  nut   merely  cumulative,1  and  that,  if  admitted,  it  would 
*bly  change  the  remit.1     It  must  also  be  shown  t.  <>\\-\- 

xistence  of  the  new  evidence  was  acquired  since  t  In- 
former trial/  and  that  it  was  not  owin^to  the  want  of  duedii.- 
that  it  was  nut  sooner  obtained.'     The  new Iv -discovered 

en-d  a?kleni  •    \vas  n-.t  admis>il,le.     Holman  r,  168.  W.  Rep.9$4;  Baily 

v.  Trammel!.  '.'7  T.  :i!7:   D.ml.-y  v.  V.  v>  T.  801. 

1  A.I  \V.  i:-p. 

Cartney  v.  Martin.  1  U.  (,'.  14:1:   Waller  v.    Hrowr 

Sabine  &  E.  T.  Ky.  Co.  v.  Wood,  69  T.  f.7!i .:  s.  w.  ];.  .„„,,. 

son,  76  T.  235:  Howies  v.  ( ;i.i--,,\v .  •_>  f.  f.  711:   l.;,,t    I.  &  R  R  I:  Ikjon, 

1  S.  W.  Rep.  63-,':   K-ldy  ».  N.-«t.,n.  VJ  S.  W.  i 

Rep.  334:  Ratto  v.  St.  Paul's  L.  &  M.  Ins.  Co..  '.'  A  pp.  <  i    v.  Cam- 

eron, 1  App.  «'.  ('..  .i  111:}:   Wilson  v.  Bainl.   1  A  pp.  C.  ( '..  .i  711.     Tli.-   r--a- 
the  rule  furl>i.l«lintf  A  new  trial  for  the  purpose  of  admitting  cumul 
mony  does  not  apply  wliere  the  party  has  had  no  fair  op|x»rt unity  t«-  |>; 
and  adduce  evidence  on  an  issue  raised  by  his  adversary  for  the  h'rst  tim- 
ing the  trial.     Wolf  v.  Mahan.  r»7  T.  171. 

Cumulative  evidence,  within  the  meaning  of  the  rule,  is  additional 
of  the  same  kind  to  the  same  point     Although  evidence  tends  to  \-\-..\  ••  til-- 
same proposition  as  that  previously  introdur>-d.  yet  it  i»  not  i-umulativr 
it  is  of  a  different  character,  and  merely  tends  to  prove  tin-  former  prop. 
by  proof  of  a  new  and  distinct  fact.    So  where  the  newly-discovere«l 
was  declaration- or  admissions  of  a  party,  and  no  evidence  of  the  kind  had  bwn 
given  on  the  trial,  it  \vas.  held  that  it  was  not  cumulative,  "l.ut  must  be  h»-ld 
to  be  original  evidence  to  establish  a  new  fact,  the  a<lmi-.inn  of  :ip|»-ll--.-.  which 
fact  tends  to  estal>li-h  the  <lef, n-.,-   relied   uj)on  by  appellant."     II.  A 
Co.  v.  For-yth.  lit  T.  171.     "Tlie  meaning  of  the  rule."  sa\ - 
"cannot  be  to  exclude, as  cumulative,  newly 

points  or  facts  bearing  on  the  general  question:  for  in  sudi  -new 

trial  for  new  evidence  could  ever  be  obtained,  all  new  evidence  relating,  as  it 
must  if  it  be  pertinent,  to  the  general  ground  or  ^en.-ral  t.i«-t  put  in  i  — 
fore."  But  it  must  mean  that  new  evidenc  •  to  a  MiUir-linate  point  is  not  com- 
petent where  the  subordinate  pointer  particular  fad  \\as  before  gone 
because  it  is  then  cumulative  or  additional  to  that  fact."      \ikt-n   v.  !'  ini.s.3 
Woodb.  &  M.  3.V<.     Kvidence  is  imt  cumulativi-  merely  b-«-a 
may  have  tend. -d  indirectly  to  .-taMish  the  same  fact.     Wolf  v.  Mahan. 
171." 

»Adams  v.  Kddy.  2t»  S.  W.  I.Vp.  >  v.  Francis.  31  - 

Cartney  v.  Martin.  1  f.  < '.  1 1:1:   Allyn   v.  Willi-.  I  I  >avw  v.  '/. 

App.  «  tird.'l  App.  T.  I1..  2  711:   Fort  v.  (  \|.p. 

:.-itto  v.  St.  Paul's  L.  ,v  M.  ln>.  ('....  v.'  App.  C.  ( '..  ?  11s. 

•  Conwill  v.  Railway  Co.,  ^  T.  \»\  .  I'.i  S.  W.  Re|>.  HMT 

App.  19  c.'n  s.  w.  i:.-p.  ::  Edward*, 

21  T.  it.n-y  v.  Martin.  1  I 

«  Johnson  v.  Flint.  7.'.  T  W.  1J.  p.  .rtupy  v.  Martin.  1  U.  C. 

14:i:   11    A  iiny.  63  T.   17',';   M.K  Vac,  Ry.  C«K 

p,  MM     white  v.  Banis,  39  T    ;:   in  s.  W.  i: 

(»rinn.  .n.  -J  App.  «'.<...     tr.:   I':.M-  v.  X.uuiu.ilt.  1     \pp.  i '.  C,  g  80&    See.  also, 
the   following  cas«-s.  ,,n  tin-   p..mt>   al»  Mad-len   v.  Shej.ni 

-  v.  .Johns,,!!.   »  T.  ::il;    Land  v.  Mill.  r.  7  T.   !•'.:!.    W,-Mi  v.  Nii-M- 
Abies  v.  Donley.  id.  -      v.  M.-Cuth'n.  '.'  T.  '."I:  Harrell   v.  Hill. 

Deanv.  Border.  15  T.  298;  Stewart   v.  H.iniiltmi.  1»  T.  W;  Hopkins  v.  Clark, » 


»'.:;4  NKW    TRIAL   AND   ARREST   OF   JUDGMENT.  [§  676. 

mi>t  be  fully  stated;  if  it  is  documentary,  it  should  be  produced; 
if  it  is  oral,  the  affidavit  of  the  witness  to  the  new  facts  proposed 
to  be  proved  by  him  must  accompany  the  application,  or  a  suffi- 
cient showing  be  made  why  it  is  not  produced.1  The  facts  show- 
ing diligence  must  be  stated,  or  the  want  of  diligence  must  be 
a  -counted  for.2  The  motion  should  state  from  whom  the  applicant 
d  »rived  his  information  as  to  the  new  testimony,  and  the  affidavit 
-of  the  alleged  witness  to  the  effect  that  he  will  testify  to  the  facts 
stated  in  the  application  should  be  produced.3 
AVhere  the  object  of  the  newly-discovered  evidence  is  to  impeach 

T.  64;  Burnley  v.  Rice,  21  T.  171:  Vardeman  v.  Edwards,  21  T.  737;  Ham  v.  Tay- 
lor, 22  T.  225;  Frizzell  v.  Johnson,  30  T.  31;  Williams  v.  Amis.  30  T.  37;  Moore 
v.  Anderson,  30  T.  224;  Zeigler  v.  Stefanel;,  31  T.  29.  When  defendant  moves 
for  a  new  trial  because  of  newly-discovered  evidence  that  the  plaintiff  suing  in 
her  own  name  has  a  husband  living,  a  mere  statement  of  the  affidavit  that 
counsel  had  been  of  the  belief  that  plaintiff's  husband  was  dead,  without  show- 
ing reason  therefor  or  diligence  in  seeking  to  ascertain  the  real  fact,  will  not 
substantiate  the  motion.  W.  U.  Tel.  Co.  v.  Walker,  26  S.  W.  Rep.  858. 

A  party  must  take  notice  from  allegations  in  the  pleadings  that  evidence  of  a 
certain  character  is  needed,  and  must  show  diligence  in  his  efforts  to  discover 
and  obtain  it.  Waples  v.  Overaker,  77  T.  7  (13  S.  W.  Rep.  527). 

!Glasscock  v.  Manor,  4  T.  7;  Edrington  v.  Kiger,  4  T.  89;  Spillars  v.  Curry,  10 
T.  143;  Steinlien  v.  Dial,  id.  268;  Hagerty  v.  Scott,  id.  525;  Ward  v.  Cobbs,  14  T. 
303;  Burnley  v.  Rice,  21  T.  171;  Wisson  v.  Baird,  1  App.  C.  C.,  §  711.  Applica- 
tions for  new  trial  on  the  ground  of  newly -discovered  evidence  will  be  scruti- 
nized with  much  strictness.  They  are  addressed  much  to  the  discretion  of  the 
•court,  and  where  the  court  has  refused  such  an  application,  the  appellate  court 
will  not  reverse,  unless  it  shall  appear  that  the  court  has  not  exercised  its  dis- 
cretion according  to  the  established  rules  of  law  and  the  principles  of  adjudged 
cases.  Mitchell  v.  Bass,  26  T.  372. 

When  application  is  made  for  a  new  trial  during  the  term,  and  the  newly- 
discovered  evidence  is  material  and  important,  and,  if  admitted,  would  or  might 
probably  change  the  result  in  a  material  respect,  and  is  clearly  admissible,  and 
when,  upon  a  review  of  the  whole  case,  the  appellate  court  is  not  certain  that 
substantial  justice  has  been  awarded  the  applicant  upon  all  the  material  issues 
by  the  judgment  of  the  court  below,  and  when  to  allow  the  verdict  to  stand 
under  such  circumstances  would  very  likely  depi'ive  him  of  a  substantial  right 
^ind  work  injustice,  a  new  trial  may  be  directed,  though  the  diligence  of  the 
applicant  may  not  reach  the  highest  or  most  exacting  standard.  Alexander  v. 
Solomon,  15  S.  W.  Rep.  906;  H.  &  T.  C.  Ry.  Co.  v.  Forsyth,  49  T.  171. 

2  Wright  v.  Bennett,  1  App.  C.  C.,  §  1078;  Hocker  v.  Day,  80  T.  529  (16  S.  W. 
Rep.  322);  Loonie  v.  Burt,  80  T.  582  (16  S.  W.  Rep.  439);  H.  &  T.  C.  Ry.  Co.  v. 
Hollis,  2  App.  C.  C.,  £  220;  Traylor  v.  Townsend,  61  T.  144, 

;  \V.  U.  TeL  Co.  v.  Hainan,  2  Civ.  App.  100  (20  S.  W.  Rep.  1133);  Russell  v.  Nail, 
79  T.  664  (15  S.  W.  Rep.  635);  Adams  v.  Halff,  24  S.  W.  Rep.  334;  Hodges  v.  Ross, 
&  Civ.  App.  437  (25  S.  W.  Rep.  975).  The  motion  is  fatally  defective  if  not  sup- 
ported by  the  affidavit  of  the  applicant.  Moores  v.  Wills,  69  T.  109  (5  S.  W.  Rep. 
675).  On  a  question  of  boundary,  the  affidavits  were  stricken  out  because  not 
filed  at  time  of  motion  for  new  trial,  and  it  was  held  that  an  amended  motion, 
based  on  the  affidavits,  showing  diligence,  newly-discovered  evidence  not  cumu- 
lative, and  material,  ought  to  have  been  allowed.  Day  v.  Goodman,  17  S.  W. 
Bep.  475. 


77.]  IK1A1.     •  !-     .11   IN.V 

the  credit  of  a  witne-  iid  tluit  a   new  trial   is  rarelv  if  < 

;   nor  will  a  new  trial  be  granted  mi  this  Around,  when  the 
.11  be  to  let  in  an  equitable  defense.1 

A  new  trial  should  be  granted  on  account  of  new lv  discovered 

•uony  of  a  witness  who  testified  at  the  trial,  but  who  did  not 

make  known  his  knowledge  of  the  facts  relied  on  until  after  the 

?  677.  Surprise  may  be  ground  for  a  new  trial. 
When-  a   party  or  his  counsel  an-  taken   by   surprise,  whe' 
by  fraud  or  accident,  on  a  material   point  or  circuniNtai. 
could  not  have  reasonably  been  anticipated,  and  \vi..  ,t  of 

skill,  care  or  attention  cannot  be  justly  imputed,  and  injustice  has 

done,  a  new  trial  will  be  granted.1     llut  where  the 
"Wilier  to  ;i  misapprehension  Of  the  law  of  the  case,  it  was  held 
that  a  motion  fora  new  trial  was  properly  overruled.'1     Whet 
party  is  surprised  by  the  unauthori/.ed  and  unexpected  absence  of 
a  witne>s.  after  the  commencement  of  the  trial,  the  better  pra 
is  to  move  for  a  continuance  as  soon  as  the  absence  of  the  witness 
is  discovered;  and  unless  this  is  done,  it  seems  doubtful  whether  it 
can  l>e  made  the  ground  of  a  motion  for  a  new  trial.*    The  want  of 
.lection  of  a  fact  by  a  witness,  which  by  due  attention  n. 

been  remembered,  is  not  a  ground  for  granting  a  new  trial: 
nor  is  an  inadvertent  omission  by  a  witness  to  state  a  material 

iScranton  v.  Tilley,  16  T.  183:  Metzger  v.  Wemller.  :{-'.  T.  378;  Hou 
St.  K  -          a.  HO  T.  *•><»  il«i  s.  W.  Rep.81);  Angel  v.  Simmon*  26  8L  W. 

oft  I.  &  M.  Ins.  r«...  -'  A|.|..  r.  r.,  ?  UK    The  rule  doe* 
\>\>\y  \vlit-rt-  tli.   t<  stiiunriy  goes  to  prove  farts  material  to  the  i»ue  in  tii- 
case,  though  it  may  aUn  tt-iul  to  contradict  or  les.vn  the  <T 

nesses.     Count»T-atli-la\  it>  will   be  receive- 1    l«  iinjx-ai-h   tlie  ci  f  the 

newly-discovered  witness,  or  it  may  be  shown  I-.  I  or  unqueationablr 

establishfil  physical  l;i.  t-  that  th«-  'i.-n,,l  t.-tiimmy  caniint  !»•  tru..  H.  A  T. 
,.  F..r-ytli.  J'.i  T.  171.  A  ru-w  trial  will  not  be  granted  when  ita  ob- 
ject  is  merely  to  contradict  an  inference  deduriblr  fn.ru  th.-  t- -tini'iny  of  the 
8UCCes>fnl  party,  an. I  \\li.-n  the  atli-la\it  of  tin-  iin|«-a«  i.in^  ^  it  new  U  not  filed 
aii-1  it  i-  ii»t  -h»\vn  that  in-  t«-stiiiK>u\  coiil.l  U«  olitained  on  another  trial  Onir 
soway  v.  White,  70  T.  47:.  ,*  s.  \V.  li,-|,.  117  . 

Mi.l.ll.  t.  n.  i:;  -ster  v.  Martin,  80  T.  118;  Aldridgv  r. 

MM, 
'Bufonl  v.  Bostick.  50  T 

Trials,  1GS,  ( Jutf.  y  v.  Moaeley.  21  T.  4W.     A  new  trial 

may  be  granted »\\  the  Ki«'mi'l  «( >urpn-. . .  \. -n  when  su.-h  surprise  {•occasioned 
byacorn-(t  ruling  "f  the  « mirt.  ami  although  negligence  roay  |»rofierly  be  inv 
putahle  tn  the  att«.rrn -y.  if  tlie  party  asking  it  lias  a  in.  ritoriou*  cause  of  a 

n.ss  injusti.-e  wcul.l  i.th.-rwise  be  done  him.     B»r  '-lick.  SOT.  871. 

Hips  v.   Wheeler.  U»  T.  586:  Beauchainn  v.  I.  A  Co.,  36  T.  Stt: 

-•a. 

I..t.lan.  17  T.  S4I:  Ijind   v.  Miller.  7  T. 

MI.  -s  .liir.-r  Mtotb)    '   i  ins  of  a  verbal  a^r.^-nn-nt.  and  one  gOM 
!•»  trial  unpr«-|  -ut  ni--\iii^    t-r  a  «  "tit muance.  he  Ui  .  to  a 

ji   u  trial 


636  NEW    TRIAL    AND   ARREST    OF   JUDGMENT.  [§  <">  i  *. 

known  to  him.  But  the  case  is  different  where  the  witness  has 
purposely  withheld  from  the  party  information  of  a  material  fact.1 
Where  a  witness  has  misled  a  party  as  to  his  testimony  on  a  material 
point,  which  can  be  supplied  on  another  trial,  a  new  trial  will  be 
granted.2  But  the  fact  that  counsel  is  surprised  by  the  testimony 
of  a  witness  is  not  sufficient  ground  for  a  new  trial  where  there  is 
no  evidence  of  an  intention  on  the  part  of  the  witness  to  deceive.3 

It  is  no  ground  for  a  new  trial  that  evidence  was  admitted  with- 
out a  proper  ground  being  laid  in  the  pleadings,  where  the  part}r 
failed  to  object  to  the  evidence  at  the  time  it  was  offered.4  Defend- 
ant's surprise  at  the  testimony  of  plaintiff's  witnesses  is  not  ground 
for  granting  a  new  trial  when  such  testimony  is  adduced  to  issues 
clearly  indicated  by  plaintiff's  pleading,  the  purpose  of  which  was 
to  enable  defendant  to  be  prepared  with  testimony  to  disprove  its. 
allegations.5 

A  motion  to  set  aside  a  judgment  on  account  of  surprise  must  not 
only  show  that  the  party  has  a  meritorious  cause  of  action  or  de- 
fense, but  he  must  set  forth  under  oath,  not  in  general  terms,  but 
specifically,  the  facts  from  which  his  meritorious  cause  of  action 
or  defense  results.6 

§  678.  Absent  testimony.  t 

Absence  of  witnesses  or  of  testimony  is  not  a  ground  for  a  new 
trial  where  no  motion  was  made  to  continue  the  cause,  nor  excuse 

iKing  v.  Gray,  17  T.  62;  Gregg  v.  Bankhead,  22  T.  245. 

2  Delmas  v.  Margo,  25  T.  1.    It  is  held  that  where  a  party  shows  reasonable 
care  and  diligence  to  provide  himself  with  testimony  to  make  out  his  case,  and 
uses  the  ordinary  caution  of  a  prudent  attorney  in  informing  himself  of  the 
facts  to  which  the  witnesses  will  depose,  and  is  then  disappointed  by  the  testi- 
mony of  his  witnesses,  so  that  an  injury  will  result,  which  may  be  remedied  by 
another  trial,  a  new  trial  ought  to  be  granted. 

3  Fears  v.  Albea,  69  T.  437  (6  S.  W.  Rep.  286).    An  appellate  cou/t  will  not  re- 
verse a  judgment  refusing  a  new  trial  on  the  ground  of  surprise,  on  account  of 
the  testimony  of  a  witness,  when  there  has  been  no  prudence  exercised  in  ascer- 
taining what  he  would  swear  before  the  trial,  no  effort  to  withdraw  the  an- 
nouncement of  ready  for  trial  on  account  of  the  surprise,  or  nonsuit  taken,  and1 
when  there  has  been  no  apparent  abuse  of  judicial  discretion.     Dotson  v.  Moss, 
58  T.  152;  Taylor  Water  Co.  v.  Dillard,  29  S.  W.  Rep.  662.    The  motion  must 
state  a  meritorious  defense.     Dempsey  v.  Taylor,  4  Civ.  App.  126  (23  S.  W.  Rep. 
220).     Where  a  new  trial  is  sought  on  the  ground  that  a  witness  was  mistaken, 
and  has  since  refreshed  his  memory,  and  will  testify  differently  on  another 
trial,  the  affidavit  of  the  witness  to  that  effect  must  be  offered,  and  the  mate- 
riality of  the  testimony  should  appear.     Spillars  v.  Curry,  10  T.  143. 

4  Bailey  v.  Hicks,  16  T.  222;  Fowler  v.  Chapman,  1  App.  C.  C.,  S  965.     It  seems 
that  if  the  party  is  in  fact  surprised,  he  ought  to  ask  leave  to  withdraw  his  an- 
nouncement,    G.,  C.  &  S.  F.  Ry.  Co.  v.  Booton,  4  App.  C.  C.,  g  233. 

'"G.,  C.  &  S.  F.  Ry.  Co.  v.  Shearer,  1  Civ.  App.  343  (21  S.  W.  Rep.  133);  McNeally 
v.  Stroud.  22  T.  229;  Anderson  v.  Duffield,  8  T.  237. 

6Contreras  v.  Haynes,  61  T.  103:  Montgomery  v.  Carlton,  56  T.  431;  Dempsey 
v.  Taylor,  4  Civ.  App.  126  (23  S.  W.  Rep.  220);  Pickett  v.  Martin,  16  S.  W.  Rep. 
1007. 


NEW  TRIAL   AND  ARREST  OF  Jl  637 

ilure  to  make  such  IM..I :.>n.1     When  the  material;' 
nee  is  discovered  before  the  condition  of  :.  the 

should  then  move  fora  continuance,  otherwise  a  nev. 
will  be  refused.1 

purport  of  the  de-iivd  t.--;  miony  should  In-  stated  in  th< 
lion;1  the  names  of  the  witnesses   must   be 

affidavits,  showing  the  farts  to  which  they  can  testify,  must  be  pro- 
duced.  <>r  their  ahs.-nce  must  be  accounted  fur.'     If  no  dili^eiu  • 

•'btain  the  testimony  of  the  witness,  the  application  maybe 

A  party  to  a  suit  who>,e  testimony  is  material  to  his  . 
may  |>r--fer  t«>  give  his  testimony  in  person,  and  may  therefore  de- 
to  liave  iiis  deposition  taken  in  his  own  behalf.     Hut  if  he  do  so 

the  risk  of  losing  the  benefit  of  his  testimony  in  the  «• 
he  should  fail  from   any  cause  to  attend   upon  the  trial.      II 

'•d  to  take  his  chance  of  attendance  upon  the  trial,  his  ah- 
should  not  in  an  ordinary  case  he.  permitted  to  result  to  the  prej- 
adice  of  the  opposite  party.     It  should  neither  be  a  ground  for  a 
inuan.  e  nor  for  the  granting  of  a  new  trial.' 

?'  670.  Absence  of  a  party  or  his  counsel. 

Where  a  cau-e  is  tried  in  the  absence  of  a  party  or  his  attor 
in  order  to  obtain  a  new  trial  on  that  ground,  it  must  be  shown  that 
such  abseu  -e   \\ as  unavoidable,  and  that  injustice  has   l>een  done. 
The  application   must  show  merits,  setting    out  the   names  of  the 

»Cook  v.  Soutlnvick,  9  T.  165;  KilRore  v.  .Ionian,  11  T.  341. 
-  Llano  Co.  v.  City  of  Llano,  28  S.  W.  Reix  988. 

Boott,  IDT. 
MVanl  v.  Colili.  !  ; 

.  l»uk.-.  nT  U".    I0a  \v.  Rap  "''•"•      Tli.  motion  may  be  refused  on 
i.iini'l  tli.-it  tin-  facts  jirnv!-.!  in  th.-  ca»t-  n-iult-r  th«-  t.-- 
M  uinviirthy  •<(  cn-.Jit.     Jernigan  v.  Waim-r,  TJ  T.  189. 
In  an  action  f--r  .iaina^. -s  for  p.-rsonal  injuries  uKJ'in^t  a  rail  i'anjr, 

i.Dtliin^  in  plaintifT's  j»-titi«.n  to  imlirat.-  that  h.-  «a»  in-t  in  hi- 
inin. I  at   any  tinif.     < 'n  cros»«xaiiiinati<>n  In-  >•:  »ua«le  certain 

ii-1  t..  l.y  hi-  nii-.li.-al  atti-nilanU  he  was  out  of  ln>  ri^'ln 

at  th>-  linn-.      It.-f--n.lant-  coiil.l  n..t  .li-|.n.\.-  tin-.  an<l  stated,  as  a  ground  for  a 
•rial,   n.-u  M.|»  ti<-.-   that    plaintitf  \\  a-    |-  rf.  ctly  «ne  a' 

This  was  -uHiri.-M  t«.  warrant  a  n«-\v  trial.     Ma  Pac.  Ry.  Ca  T.  Walker, 

•M. 
A  witness  testified  to  declarations  ma«l.-  at  th.-  wr.-.-k  l.y  tlu>  p-n.-ral  ma: 

n.il\\ay  rf|iriniaii<lin>:  an  i-ni|.l..\  ••«-.  t  In-  >.-rti..i  f<«r  not   going 

:n  tin-  morning  li«-fori-  th.-  u  reck  occurn  •!.     In   I  fora 

M.-VV  trial  it  ua-  sh..\vn  that  ;  .1  manager  won  M  «lmy  naid  tevtimooy. 

-li..\vn  that  th.-  nianau'-T  \v.»s  out  «'f  the  State.  *• 
of  th.-  inat.-riality  .'t  hi-  t.-tiuioiiy  it   .-..iil.l  n--t    lie  obtained.     It  W»- 

,  -h.ml.l  have  been  ^  -r**1' 

T.  4-.M  .1 ;  i.oe  of  the 

il  manager  of  an  in        -  >ni|>.mv.  .1.  f'-n.lant.  on  a.  «•.. \mt  .-f  the  r, 

it-  that  tli>-  <  riminal  d.H-k.-t  was  nn-l  fora  new 

\.  I..HP  18*>. 


C38  NEW    TRIAL   AND   ARREST   OF   JUDGMENT.  [§  070. 

witnesses  by  whom  the  case  can  be  supported,  and  the  evidence  they 
would  give;  the  affidavits  of  the  witnesses  themselves  should  be  ob- 
tained if  possible;  and  if  not,  the  reason  therefor  should  be  shown.1 
Absence  cf  counsel,  if  material,  should  be  urged  as  a  ground  for  a 
continuance ! 

Where  the  defendant  in  a  cross-bill  prayed  to  have  his  field-notes, 
corrected,  and  a  cloud  removed  from  his  title,  the  case  being  tried 
in  the  absence  of  the  plaintiff,  resulting  in  a  judgment  in  favor  of 
the  defendant,  it  was  held  that  the  motion  for  a  new  trial,  on  the 
ground  that  the  plaintiff  had  a  meritorious  cause  of  action  and  for 
other  reasons  sufficiently  established,  was, defective  in  not  exhibit- 
ing the  chain  of  title  or  other  documentary  evidence  relied  on.3 

If  a  party  is  forced  to  trial  in  the  absence  of  his  counsel,  or  he  is 
unavoidably  absent,  and  he  shows  diligence  and  a  meritorious  de- 
fense or  cause  of  action,  the  rule  is  that  a  new  trial  ought  to  be 
awarded.4  A  new  trial  will  not  be  granted  because  of  the  absence 
of  the  applicant  through  the  neglect  of  his  attorney  to  notify  him.5 

It  is  no  ground  for  new  trial  that  a  party  represented  by  attor- 
ney was  absent  on  the  day  of  trial,  and  that  if  present  he  could 

1  Strippleman  v.  Clark,  11  T.  296;  Spencer  v.  Kinnard,  12  T.  180;  Ward  v.  Cobh, 
14  T.  303;  Dorn  v.  Best,  15  T.  62;  Power  v.  Gillespie,  27  T.  370.     That  the  defend- 
ant had  intrusted  his  case  to  an  attorney  who,  he  expected,  would  have  given  it 
proper  attention;  that  he  did  not  think  it  necessary  to  be  present  in  person; 
that  his  account,  pleaded  in  setoff,  was  just,  and  plaintiff  had  promised  to  allow 
it;  and  that  the  cause  was  tried  in  the  absence  of  himself  and  attorney,  presents 
no  sufficient  ground  for  a  new  trial.     Freeman  v.  Neyland,  23  T.  529.    The  ab- 
sence of  counsel  to  attend  another  court  does  not,  without  other  circumstances, 
furnish  any  ground  for  opening  a  judgment  and  granting  a  new  trial.     Power 
v.  Gillespie,  27  T.  370.     If  the  judgment  goes  by  default,  and  the  party  discloses 
a  meritorious  defense,  the  motion  ought  to  be  granted.     Tullis  v.  Scott,  38  T.  537. 
The  absence  of  a  party  upon  official  public  business  is  not  alone  a  sufficient 
ground  for  a  new  trial.     Citizens,  who  bear  the  double  burden  of  both  public 
and  private  duties,  must  exercise  the  circumspection  to  anticipate  and  provide 
for  the  possible  contingency  of  their  conflict.     Houston  v.  Jennings,  12  T.  487 ; 
Clute  v.  Ewing,  21  T.  677. 

2  W.  U.  Tel.  Co.  v.  Brooks,  78  T.  331  (14  S.  W.  Rep.  699). 

3  Montgomery  v.  Carlton,  56  T.  431.    Where  affirmative  relief  is  awarded  a  de- 
fendant on  default  by  the  plaintiff,  the  right  to  a  new  trial  is  governed  by  the 
rules  applicable  to  a  default  by  a  defendant.     Truehart  v.  Simpson,  24  S.  W. 
Rep.  842. 

4  Wortham  v.  Bolton,  3  App.  C.  C.,  S  312;  liopkins  v.  Niggli,  6  S.  W.  Rep.  G25; 
Griffin  v.  Towns,  25  S.  W.  Rep.  968.     Absence  of  a  counsel  is  not  a  sufficient 
ground  where  it  was  known  a  week  or  more  before  the  trial  that  counsel  could 
probably  not  be  present;  there  is  time  in  such  case  to  procure  other  counsel. 
I.  &  G.  N.  Ry.  Co.  v.  Miller,  28  S.  W.  Rep.  233.     See  I.  &  G.  N.  Ry.  Co.  v.  Miller, 
87  T.  430  (29  S.  W.  Rep.  235). 

5  Halton  v.  Salmons,  2  S.  W.  Rep.  753.    It  is  not  a  sufficient  ground  that  a 
party  failed  to  attend  with  his  witnesses  because  his  attorney  told  him  he  did 
not  think  the  case  would  be  tried.    Rice  v.  Scottish-American  Mortg.  Co.,  30- 
8.  W.  Rep.  75. 


30,681.        M.W    IKIAI.  AM-  AKKK.-I   <•{••  .n  I...M; 

have   established  by  his  own  evidence  facts   material  to  his  cause 
which  were  not  known  to  his  attorney.1 

i 

8  680.  Error  in  the  charge  of  the  court. 

If  an  erroneous  charge  has  been   L'iven   to  the  jury,  which  may 
have  inHuenc"d  tin-  finding,  and  in  t lie  absence  of  which  tin-  tind- 
ing  might  have  been  different,  a  new  trial  will  be  granted,  although 
the  court  may  be  satisfied    with   the  verdict.-      I5ut   if  the  verdi.-t 
could   not,  upon   the  evidence,  have  been  different,  and  the  ji, 
of  the  case  has  Keen  attained,  the  verdict  will  not  l>e  distin 
must  be  shown  that  the  charge  produced  actual  <>r  po-,>ible  inj 
the  error  in  the  (harp-  must  he   material.  to   the  prejudice  of  the- 
party  complaining.8     When  the  ivn.nl  shows  that  the  verdict 
warranted  l»y  the  pleading,  and  was  not   outride  the  is-u 
abstract  error  in  the  charge  not  appearing  t«i  have  affected  the  re- 
sult is  no  ground  for  reversal." 

§  681.  Testimony  illegally  admitted  or  excluded. 

Anew  trial  will  bo  granted  when  illegal  testimony  i 
mittecl;7  but  it  must  appear  that  the  evidence  is  clearly  inadi: 
ble,  and  #oes  to  the  merits,  and  is  not  supported  or  subsequently 
supplied  bv  le^-al  testimony.      It'  the  evidence  is  upon  an  immaterial 
point,  and  could  not  have  misled  the  jury;  or  if  it  is  merely  cuinu- 

1  Helm  v.  XXYaver.  09  T.  143  (6  a  W.  Rep.  450>.     XVI.ere  the  de|M-it  i 
absent  defendant   are   n-jul  on   the  trial,  ami  no  Mitlirimt  n-a-on  is  slmwi 
all  his  tf-tiiii..n\  \\.i-  no  t  pni.lucf.1  l.y  .l.-p.-itioii.  a  IH-\V  trial  i- pi  :  iwed. 

Ellis  v.  HlanU-.  IT.  S.  XV.  K-,,.  :{09. 

If  a  party  i-  r-  pi ••-.•iitr.  1  l>y  conns.-!  at  th.-  trial,  tin-  fact  that  he  helieve- 
absent  c«>unsi-l  \vouM  have  madeal>«'tt.T  pi-  -.••ntation  ..I  In-  out  'im-1 

for  a   new  trial.      Alain..   F.  In-.  ('<•.  v.  I.an.-aM.T.  ,'s  S.  \V.  i 
v.  Shuber.  77  T.  V  I    18  BL  \V.  l;,  p.  fiU),  the  cas.-  \va-  tak.-n   fn-in  the  jury  -i 
ami  trit-,1  \vith«nit  a  jury  in    the  al-mc.-   of  .l.-f.'ii.lant.  an. I  it  was  In  M  that  he 
was  entitle. 1  to  a  new  trial. 

0»  v.  Mitrhi-H.  1  T.  41:!:  Chan.ll.-r  v.  Fulton.  1<>  T 

.  tlioii«h   in  -..me   jiarti.-nlar  ol.ii,.\i,.u-   to  ,  ritieism.  Imt  \\hirh. 
taken  in   C  with  <.ther  porti-.n-  of  the  .  il.l  imt  h.. 

the  jr.  -in-  the  jii'l-^iiient  -1  T. 

~t    that   an   erroneous  rharge  h*8  I • 

the  jury,  it  i-  u..  C8QM  tot  rrrUMl     llulil-x   v.  BtokMi  -'-'  T.  '.'i:.     S,., 
v.  Chisholm.  'J 

»San  Antonio  St.  Ry.  Co.  v.  Me.-hl-  r.  -7  T.  828  (80  - 
Mitchell.  1    T.    !»:!:   ( -..iiun-r.-ial    Mank  v.  .!..., 
28  T.635:   Hohanan  v.  II 

Wade.  83  'l  H.-nsioii  Ca 

Shiner,  5  I'iv.  A  pp.  ">7  «-,•»  S.  XV.  K,-p.  '.'I  ^'I'-r.  'W  ! 

Rep.  501). 

«  Blum  v.  I.L-ht.  ^1 

»O..  II.  ,V  S.    X.  K'y.  Oa  fj  liebhiinty.  58  T.   -.'•«;  Shuiniinl  v.  Johiwon,  W  T.  70 
(178.  XV.  1 

•  Hill  v.  Kailuav  C,...  -  |X  10W). 

"Thurinon.l  v.  Trammel.  -' :  '1^,287.581 


i'.-1'l  NEW   TRIAL   AND   ARREST   OF   JUDGMENT.  [§  681. 

lativo,  and  there  is  sufficient  evidence  without  it  to  support  the  ver- 
dict of  the  jury,  a  new  trial  will  not  be  granted.1 

Wiicl her  the  admission  and  subsequent  exclusion  of  improper 
•testimony  on  the  trial  of  a  cause  should  afford  ground  for  revers- 
ing a  judgment  must  depend  on  a  consideration  of  the  facts  in  the 
particular  case.  It  is  only  in  cases  where,  after  a  consideration  of 
all  the  facts,  it  is  probable  that  the  finding  of  the  jury  may  have 
been  influenced  by  the  improper  admission  of  the  testimony,  that 
the  judgment  will  be  reversed.2  Where  the  case  is  tried  before  a 
jury,  and  each  party  has  produced  evidence  sufficient  to  establish 
Iris  case,  any  illegal  testimony  admitted  in  favor  of  the  winning 
party  will  authorize  a  reversal.  Where  the  trial  is  by  the  court, 
the  appellate  court  might  presume  that  the  judge  discarded  the 
illegal  testimony.3 

The  exclusion  of  legal  testimony  will  authorize  a  new  trial,4  pro- 
vided the  rejected  evidence  might  have  changed  the  result.5  If  it 
is  manifest  that  it  could  not  have  affected  the  result,  its  exclusion 
is  immaterial.6  In  trials  before  the  court,  where  the  evidence  is 
contradictory  and  nearly  balanced,  the  exclusion  of  testimony 
.slightly  corroborating  the  losing  party  will  be  sufficient  ground 
for  reversal  —  the  testimony  to  the  controlling  fact  being  confined 
to  the  parties,  one  swearing  to  the  fact  and  the  other  denying  it.7 

1  Burnham  v.  Walker,  1  App.  C.  C.,  §  903;  Patton  v.  Gregory,  21  T.  513;  Smith 
v.  Hughes,  23  T.  249;  Dignowitty  v.  Alexander,  25  T.  Sup.  162;  Hunter  v.  Hub- 
bard,  26  T.  537;  Dailey  v.  Starr,  26  T.  562;  Cooper  v.  State,  23  T.  331;  Sacra  v. 
Stewart,  32  T.  185;  Cassin  v.  La  Salle  Co.,  1  Civ.  App.  127  (21  S.  W.  Rep.  122);  San 
Antonio  St.  By.  Co.  v.  Mechler,  87  T.  628  (30  S.  W.  Rep.  899).  Where  judgment 
could  not  properly  have  been  rendered  otherwise,  errors  in  the  admission  of  evi- 
dence become  immaterial.  Pearce  v.  Jackson,  84  T.  515  (19  S.  W.  Rep.  690); 
Leman  v.  Borden,  83  T.  620  (19  S.  W.  Rep.  160);  Rio  Grande  &  E.  P.  Ry.  Co.  v. 
Miluio,  79  T.  628  (15  S.  W.  Rep.  475);  Wilson  v.  Lucas,  78  T.  292  (14  S.  W.  Rep. 
690).  If  it  cannot  be  known  that  the  improper  evidence  was  not  injurious  to 
the  party  complaining,  the  judgment  will  be  reversed  (Jackson  v.  Deslonde.  1 
U.  C.  674),  as  in  case  of  evidence  calculated  to  arouse  the  feelings  of  the  jury. 
Q.,  C.  &  S.  F.  Ry.  Co.  v.  Levy,  59  T.  542. 

-  Dillinghara  v.  Russell,  73  T.  47  (11  S.  W.  Rep.  139);  Schoolher  v.  Hutchins,  66 
T.  3i4  (1  S.  W.  Rep.  266).     The  practice  of  admitting  improper  testimony  with 
the  promise  or  expectation  of  afterwards  directing  the  jury  not  to  consider  it, 
or  of  controlling  its  effect  by  a  charge,  is  one  not  to  be  encouraged;  when  such 
testimony  results  in  rousing  the  sympathies  or  prejudice,  it  is  apt  to  influence 
the  finding,  notwithstanding  a  charge  to  disregard  it.     G.,  C.  &  S.  F.  Ry.  Co.  v. 
Levy,  59  T.  542. 

8  Ross  v.  Kornrumpf,  64  T.  390;  Clayton  v.  McKinnon,  54  T.  206;  Schleicher  v. 
Markward,  61  T.  99;  Lindsay  v.  Jaffray,  55  T.  626. 
«  Keys  v.  Baldwin,  33  T.  666. 

*  Taylor  v.  Ferguson.  87  T.  1  (26  S.  W.  Rep.  46). 

'•  Msup  v.  Jordan,  69  T.  300  (6  S.  W.  Rep.  831);  Lewis  v.  Simon,  72  T.  470  (10 
S.  \V.  Rep.  554);  Thurman  v.  Blankenship  &  Blake  Co..  79  T.  171  (15  S.  W.  Rep. 
887):  Converse  v.  Langshaw,  81  T.  275  (16  S.  W.  Rep.  1031);  Stover  v.  Garvin,  22 
•T.  9:  Atkinson  v.  Wilson,  31  T.  643. 

7Dupree  v.  Estelle,  72  T.  575  (tO  S.  W.  Rep.  666).     In  a  case  peculiarly  of  fact, 

4 


§682.]  NK\V     IKIA1.    AM>    ARREST   OF    JL'DGV 

?  682.  Verdict  not  supported  by  evidence. 

Tin-  emu-  is  in  mutter  of  la\v  where  a  verdict  is  based  on  insuffi- 
cient evidence,  and  a  thirtl  verdict  will  1x3  set  aside;1  or  the  judg- 
ment may  l.e  reversed  and  the  cause  dismissed.'  Doubts  as  to  the 
reasonable  sufficiency  of  the  evidence  to  sustain  a  verdict  may  bv 
the  trial  court  lw  resolved  in  favor  of  the  verdict;  but  when  it  is 
dear  that  tin-  evidence  is  not  reasonably  sufficient,  under  all  th- 
en instances  of  the  case,  to  satisfy  the  mind  of  the  truth  of  the  alle- 
'iis  on  which  it  was  rendered,  it  should  be  set  aside;  and  if  this 
rule  has  not  been  observed  by  the  trial  court,  the  judgment  baaed 
.eh  verdict  becomes  a  proper  subject  of  revision  on  appeal.1 
lint  it  is  only  when  there  is  no  evidence  to  support  a  verdict,  or  it 
is  palpably  airainst  the  weight  of  the  evidence,  that  an  appellate 
court  can  disturb  it;'  this  is  the  rule  of  practice  whether  the  tind- 
in;:  !•»•  that  of  a  jury  or  of  the  court.5  If  the  evidence  is  reasonably 
.-utlicient  to  support  a  verdict,  a  judgment  will  not  be  reversed  upon 
the  facts,*  or  if  there  is  ample  evidence  to  authorize  a  verdict  for 
either  party.7  When  it  appears  that  there  was  lawful  evidence  on 
which  to  base  the  verdict,  it  will  not  be  reversed  on  the  sole  gr 
ihat  the  court  believes  the  evidence  insufficient  to  support  it." 

It  is  the  peculiar  and  exclusive  province  of  the  jury  to  judge  of 
the  credibility  of  witnesses  and  to  weigh  the  evidence;  and  their 
verdict  will  not  be  set  aside,  as  against  the  evidence,  merely  because 
the  court  might,  from  an  examination  of  the  evidence,  have  arrived 
at  a  result  different  from  that  found  by  the  jury.' 

depending  upon  the  credibility  of  witnesses  and  the  weight  to  be  given  to  evi- 
.  and  where  the  rejected  testimony  went  to  disputed  fact*,  and  t 
t  to  be  attached  to  the  witnesses  on  the  other  ri  vidence  will  be 

deemed  material    Todd  v.  Dysart,  23  T.  590;  Rogers  v.  Grain,  80  T.  284;  Ballard 
v.  Perry,  28  T. 
i  Randall  v.  Collins,  58  T.  231 ;  Pilcher  v.  Kirk,  60  T.  168. 

n?ager  v.  Douglass,  11  T.  4*4  (14  a  W.  Rep.  150). 
»EL&T  ..  v.  Si-hmi.lt.  «1  T.  8WL 

<T.  &  N.  O.  Ry.  Co.  v.  Ludtk.-.  UCiv.  App.  808  (28  a  W.  Rep,  82);  Elmendorf  T. 
iscoe  v.  BronauKh.  1  T.  328;  Edrington  T.  Kiger,  4 

T.  89;  Mitchell  v.  Matson,  7  T.  :J;  Clark  v.  Davis,  7  T.  556;  Sims  &  Smith  v. 

rlian..-,  i.l.  .V.I:   \Vrlls  v.  Bai  v<4;  Russell  v.  Mason.  8  T.  286;  Long  v. 

>:  I^itliam  v.  Selkirk.  11  T.  :H4:  Alley  v.  Booth.  16  T.  94;  Stewart 

v.  Hamilton.  1-  Meckling.  22  T.  36;  Walker  T.  Walker.  29  T. 

331;  Anderson  v.  Anderson,  23  T.  639;  Howard  v.  Ray,  25  T.  88;  Young  T.  Read. 

9op.  lit;  Adams  Y.  George, IB  '  v.  Haley,  28  T.  52:  Swin- 

|{,N>th.  H  Mr. md  v.  S|iriiik'li«-ld,  28  T.  640.  Tuttl.-  38  T. 

Hledsoe, ::. 

nity  r.,unty  LumU-r  To.  v.  I'in.-karl.  4  I'iv.  App,  671  (88  a  W.  Rep.  720, 
1015);  Rio  Grande  B.  &  T.  r. ..  % .  Varela,  22  S.  W.  Rep.  99. 
•Moore  v.  Rogers,  84  T.  1  (19 S.  W.  Rep.  283). 
•  Reeves  v.  Roberts,  62  T.  550. 
«L  A  O.  N.  Ry.  Co.  v.  Dawson.  62  T.  260. 

•Briscoe  v.  Bronaugh,  1  T.  326;  Cummins  v.  Rioe,  19  T.  225;  Pmtton  v.  Greg- 
41 


642  NEW   TRIAL   AND   ARREST   OF   JUDGMENT.  [§  683.. 

§  683.  Verdict  contrary  to  the  evidence. 

The  most  common  ground  for  a  motion  for  a  new  trial  is  that 
the  verdict  of  the  jury  is  against  evidence.  Where  the  unsuccess- 
ful party  relies  for  a  reversal  of  the  judgment  by  the  appellate 
court  on  this  ground,  it  is  necessary  that  he  should  make  a  motion 
for  a  new  trial.1  In  this  class  of  cases  the  application  is,  to  a 
great  extent,  addressed  to  the  sound  discretion  of  the  judge  who 
presides  at  the  trial ;  who,  from  his  means  of  observing  the  man- 
ner of  the  witnesses,  and  from  having  heard  them  testify,  can  bet- 
ter determine  whether  the  justice  of  the  case,  on  the  whole,  has 
been  attained.2  It  has  been  well  said  that  great  injustice  may  be 
done  by  lending  too  easy  an  ear  to  applications  for  new  trials.  A 
party  whose  cause  is  just  may  be  thus  delayed  in  its  prosecution 
until  his  witnesses  are  dead,  his  evidence  lost  or  destroyed,  and  his 
rights  ultimately  defeated ;  or,  if  successful  in  the  end,  even  success 
may  not  compensate  for  the  harassment,  vexation  and  expense  of 
causelessly  protracted  litigation.3  But  it  must  be  observed  that  an 

ory,  21  T.  513;  Montgomery  v.  Culton,  23  T.  156;  Baldridge  v.  Gordon.  24  T.  288. 
Where  it  is  not  a  case  of  conflict,  but  of  entire  deficiency  of  evidence,  a  new 
trial  ought  to  be  granted.  Moore  v.  Anderson,  30  T.  224;  Rowe  v.  Collier,  25  T. 
Sup.  252. 

The  opinion  of  the  majority  of  a  jury,  though  accepted  as  a  verdict  by  agree- 
ment of  parties,  is  not  entitled  to  the  consideration  conceded  to  verdicts,  and 
such  a  finding  will  be  set  aside  if  not  supported  by  the  weight  of  the  evidence. 
Welder  v.  Hunt,  34  T.  44. 

i  Hart  v.  Ware,  8  T.  115;  Cain  v.  Mack,  33  T.  135;  Clark  v.  Pearce,.  80  T.  146  (15 
S.  W.  Rep.  787);  Daniels  v.  Creekmore,  27  S.  W.  Rep.  148.  Where  a  motion  for  a 
new  trial  is  based  upon  an  erroneous  verdict,  the  grounds  upon  which  the  ver- 
dict is  attacked  as  contrary  to  the  evidence  should  be  distinctly  stated.  White 
v.  Wadlington,  78  T.  159  (14  S.  W.  Rep.  296).  Under  a  motion  for  a  new  trial 
because  "the  verdict  is  contrary  to  and  not  supported  by  the  evidence,''  when 
overruled,  special  matters  of  error  cannot  be  assigned.  The  matter  complained 
of  must  be  called  to  the  attention  of  the  trial  court  before  it  can  be  considered 
on  appeal.  Degener  v.  O'Leary,  85  T.  171  (19  S.  W.  Rep.  1004).  And  see  Jacobs 
v.  Hawkins,  63  T.  1. 

2Edrington  v.  Kiger,  4  T.  89;  Latham  v.  Selkirk,  11  T.  314;  Goss  v.  McClaren. 
17  T.  107.  A  verdict  must  appear  to  be  clearly  wrong  to  authorize  the  court  to 
set  it  aside  as  contrary  to  the  evidence.  Morgan  v,  Giddings,  1  S.  W.  Rep.  369: 
H.  &  T.  C.  Ry.  Co.  v.  Lee,  69  T.  556  (7  S.  W.  Rep.  324).  If  there  is  evidence  to  sup- 
port the  verdict,  an  appellate  court  will  not  reverse  because  of  opinion  that  the 
preponderance  of  evidence  is  against  it.  Rainbolt  v.  March,  52  T.  246;  Green- 
leve  v.  Blum,  59  T.  124;  Jacobs  v.  Hawkins,  63  T.  1;  H.  &  T.  C.  Ry.  Co.  v.  Larkin, 
64  T.  454:  H.  &  T.  C.  Ry.  Co.  v.  Lee,  69  T.  556  (7  S.  W.  Rep.  324);  H.  &  T.  C.  Ry. 
Co.  v.  Patton,  9  S.  W.  Rep.  175.  Where  the  verdict  is  so  repugnant  to  the  evi- 
dence that  the  lower  court  ought  to  have  set  it  aside,  the  appellate  court  will 
reverse.  Letcher  v.  Morrison,  79  T.  240  (14  S.  W.  Rep.  1010). 

3  Sweeney  v.  Jarvis,  6  T.  36.  The  duty  of  a  trial  judge  is  not  confined  to  ad- 
vising the  jury  of  the  law  of  the  case;  but  if  the  testimony  does  not  sustain  the 
finding  of  the  jury,  their  verdict  should  be  set  aside  and  a  new  trial  be  granted. 
G.,  C.  &  S.  F.  Ry.  Co.  v.  Wallen,  65  T.  568.  A  judgment  will  be  reversed  if  it  is 
clearly  against  the  evidence.  Bexar  Bldg.  &  Loan  Ass'n  v.  Newman,  25  S.  W.. 
Rep.  461. 


JTBW   TRIAL  AND   ARREST  OF  JUDGMENT.  '  i .", 

appellate  court  is  cautious  in  disturbing  the  verdict  of  a  jurv,  and 
will  not  do  so  unless  in  a  very  clear  case,  on  the  ground  that  the 
judge  in  the  court  below  — who  heard  the  witness*-  .and 

who,  therefore,  must  be  far  more  competent  to  judge  of  the  weight 

iiich  the  evidence  is  entitled  than  the  appellate  court  can  be 
from  the  mere  inspection  of  a  statement  of  the  evidence  in  the  rec- 
ord—  is  satisfied  with  it.1  Where  aver:  onsidered  on  ap- 

.  it  is  not  necessary  that  it  be  supported  by  a  preponderance  of 
evidence.2  Where  the  evidence  is  conflicting,  there  is  no  error  in 
refusing  to  grant  a  new  trial  on  the  ground  that  the  verdict  is  con- 
trary to  the  evidence.1  In  case  of  a  conflict  of  test  inn  my.  ordi- 
narily the  action  of  the  trial  court  upon  the  issues  will  be  conclu- 
sive;4 but  it  is  the  right  and  duty  of  an  appellate  court  to  set  aside 
a  verdict  when  it  is  against  such  a  preponderance  of  the  evidence 
as  to  be  clearly  wrong.5 

?'  684.  Verdict  contrary  to  law. 

It  is  a  general  rule  that,  if  the  finding  of  the  jury  be  clearly 

•ist  law,  the  verdict  will  be  set  aside  and  a  new  trial  gra 
But  if  justice  has  been  done,  the  court  will  not,  against  the  equity 
of  the  case,  disturb  the  verdict  upon  the  ground  of  a  technical 
jection.'    Nor  will  a  new  trial  be  granted,  where  the  case  is  f : 

1  E.lrington  v.  Kiger,  4  T.  89;  Briscoe  v.  Bronaugh,  1  T.  826;  T.  &  P.  Ry.  Co.  T. 
Casey,  52  T.  us. 

*H.  &  T.  C.  Ry.  Co.  v.  Shirley.  ,M  S.  W.  Rep.  809. 

»  E.,  L.  &  R.  R.  Ry.  Co.  v.  Boon.  1  &  W.  Rep.  632.    The  finding  of  a  jury  upon 
facts  when  the  evidence  is  conflicting  is  conclusive  only  when  th<-  \\  it  nesses 

ving  do  BO  in  person  before  the  jury.  Then  their  manner  of  t> 
proper  for  scrutiny,  and  in  observing  this  the  jury  possess  an  advantage  which 
judges  cannot  have  who  hear  the  case  on  appeal.  But  when  the  evidence  is 
contained  in  a  written  deposition,  the  reason  of  the  rule  which  makes  the  de- 
cision of  a  jury  in  its  finding  on  facts  conclusive  ceases.  Thorn's  Heirs  v.  Fra- 
feirs.  60  T.  260. 

"While  an  appellate  court  will  not  exercise  so  great  a  discretion  as  the  trial 
judge  whi>  hf.-irs  tin-  ••vMiTuv  ^h»ulJ  in  granting  a  n«-w  trial.  y»-t  wh.-n  the  rec- 
ord shows  that  there  is  a  deficiency  of  evidence  to  support  the  action,  an 
inanifVst  that  the  \.  r  In  t  is  clearly  contrary  to  the  evidence,  it  has  nev«  : 
wanting  in  power  to  reverse  a  judgment  baaed  on  m 

.i.lt.  61  T.  :>*:>;  Zap,,  v.  Mi.-haelis,  58  T.  270;  Ragland  T.  Wisrock. 
61*  T.  891. 

«  Wolf  v.  Brass,  72  T.  188  (12  S.  W.  Rep.  159);  Bell  v.  Boyd,  76  T.  198  (18  a  W. 
Rep.  23-Ji:  Simmons  Hardware  Co.  v.  Kaufman.  :t  T.  181  (8  a  W.  Rep.  988} 

•  Mo.  Pac.  Ry.  Co.  v.  Somers,  78  T.  489  (14  a  W.  Rep.  779). 

•Spencer  v.  Millican,  31  T.  6"  r,  Vinson,  89  T.  125;  Ellis  r.  Ponton.  88 

T.  434.  The  appellate  court  will  not  reverse  where  the  verdict  is  not  clearly 
wrong,  although  a  different  verdict  would  have  been  more  satisfactory 
because  the  amount  of  damages  given  may  seem  somewhat  large.  T.  &  P. 
Ry.  Co.  v.  O'Donnell,  58  T.  27.  A  decree  based  upon  an  erroneous  construction 
of  the  law  of  descent  is  fundamental,  and  ground  for  reversal  McDougal  T. 
Bradford,  80  T.  558  (16  S.  W.  Rep.  619). 


644  NEW   TRIAL  AND   ARREST   OF  JUDGMENT.  [§  685. 

lous  in  amount,  and  attended  with  unimportant  results,  unless  it  be 
plain  that  the  law  has  been  violated  and  that  injustice  has  been 
•done.1  A  new  trial  will  be  granted  where  the  verdict  of  the  jury 
does  not  find  the  issues,  but  matter  totally  foreign;2  or  where  it 
only  finds  a  part  of  the  issue; 3  or  where  it  is  uncertain  or  argu- 
mentative.4 

§  685.  Excessive  or  inadequate  damages. 

Where  a  verdict  appears  to  be  palpably  and  manifestly  excessive, 
it  is  the  duty  of  the  court  to  set  it  aside  and  send  the  case  to  an- 
other jury ;  and  if  it  .be  made  to  appear  that  the  court  erred  in 
refusing  a  new  trial,  the  judgment  will  be  reversed;5  and  whilst 
courts  should  be  slow  to  interfere  with  the  verdict  of  a  jury  on  a 
claim  for  damages  when  the  measure  of  damages  is  indefinite, 
they  should  not  hesitate  to  interfere  when  the  error  in  the  verdict 
is  manifest.6  In  cases  in  which  exemplary  damages  are  awarded 
by  law,  excessive  damages  furnish  no  ground  for  a  new  trial, 
unless  the  damages  be  so  flagrantly  excessive  as  to  warrant  the 
conclusion  that  the  jury  were  actuated  by  passion,  partiality  or 
prejudice.7 

New  trials  may  be  granted  as  well  when  the  damages  are  mani- 
festly too  small  as  when  they  are  too  large.8  In  an  action  for  de- 

1  Ogden  v.  Cox,  23  T.  22.    An  error  in  the  allowance  of  interest  from  the  10th 
of  the  month  instead  of  from  the  16th,  on  a  recovery  of  $40,  is  too  trifling  to  be 
noticed  (Mo.  Pac.  Ry.  Co.  v.  Colquitt,  9  S.  W.  Rep.  603);  where  the  excess  of  in- 
terest is  considerable,  the  judgment  will  be  reformed  and  rendered.     Chapman 
v.  Bolton,  25  S.  W.  Rep.  1001.    See  Schuster  v.  Frendenthal,  74  T.  53  (11  S.  W. 
Rep.  1051). 

2  Where  the  pleadings  and  evidence  support  the  verdict  the  judgment  will 
not  be  reversed  merely  because  the  basis  upon  which  the  jury  estimated  the 
amount  may  not  correspond  with  the  true  issues,  and  because  the  judge  has 
submitted  to  them  an  improper  test  or  measure  of  liability  whereby  to  regulate 
their  finding,  provided  that,  from  the  pleadings  and  evidence,  the  amount  of 
the  judgment  rendered  is  clearly  right.    King  v.  Bremond,  25  T.  637.    A  judg- 
ment based  on  a  verdict  returned  in  response  to  an  issue  not  presented  by  the 
pleadings  will  be  reversed.    Graham  v.  McCarty,  69  T.  323  (7  S.  W.  Rep.  342). 

3Kesler  v.  Zimmerschitvte,  1  T.  50;  Ford  v.  Taggart,  4  T.  492;  Hall  v.  York,  16 
T.  Ib;  Brooke  v.  Moreland,  32  T.  380.  The  verdict  and  judgment  should  dispose 
of  all  the  issues  made  in  the  pleadings  and  evidence.  Michon  v.  Ayalla,  84  T. 
685  (19  S.  W.  Rep.  878);  Marsalis  v.  Patton,  83  T.  521  (18  S.  W.  Rep.  1070). 

4  Mays  v.  Lewis,  4  T.  38;  Harrell  v.  Babb,  19  T.  148;  Bradshaw  v.  Mayfield,  24 
T.  481;  Smith  v.  Tucker,  25  T.  594. 

»H.  &  G.  N.  Ry.  Co.  v.  Randall,  50  T.  254;  Thomas  v.  Chapman,  62  T.  193; 
Gatewood  v.  Laughlin,  2  App.  C.  C.,  §  151. 

6  Darcy  v.  Turner,  46  T.  30.    Where  the  evidence  is  sufficient,  if  believed,  to 
sustain  a  verdict,  it  is  not  error  to  refuse  a  new  trial  on  the  ground  that  the 
verdict  is  excessive.    G.,  H.  &  S.  A.  Ry.  Co.  v.  Johnson,  19  S.  W.  Rep.  867. 

7  McGehee  v.  Shafer,  9  T.  20;  L  &  G.  N.  Ry.  Co.  v.  Stewart,  57  T.  166;  H.  &  T. 
C.  Ry.  Co.  v.  Maddox,  2  U.  C.  312:  Barnett  v.  Hicks,  6  T.  352. 

8  R.  S.  1452. 


§685.]  NEW    TRIAL  AND    ABKE8T  OP  JUDOS!  • '•!."• 

ceit  in  the  sale  of  a  horse,  shown  by  the  evidence  to  have  been  rep- 
resented as  worth  $200,  and  actually  worth  nothing,  a  verdict  for 
one  cent  dump's  \\ill  be  set  aside  on  appeal  for  inadequa* 

W  hen  no  special  damages  have  been  alleged  or  proved,  the  ques- 
tion of  the  amount  of  damages  is  for  the  most  part  left  t<>  th«-  jury : 
and  only  in  cases  of  actual  damages  clearly  in  excess  of  tli« 
diet  will  new  trials  be  granted.1    The  statute  applies  as  well  in  ac- 
tions ex  delicto  as  in  those  ex  contract  u* 

1  Duncan  v.  Matula,  36  S.  W.  Rep.  638.  If  the  verdict  is  for  a  smaller  amount 
than  under  the  evidence  the  party  was  entitled  to,  but  that  fact  was  not  st-t  up 
in  a  motion  for  a  new  trial,  it  will  afford  no  ground  for  reversal  on  appeal 
(Jacobs  v.  Hawkins,  68  T.  1);  so,  also,  where  it  is  claimed  that  the  verdict  is  ex- 
cessive. Seele  v.  Neuman.  1  S.  W.  Rep.  274. 

*Ledbetter  v.  Burns,  42  T.  508;  Irwin  v.  Cook,  24  T.  244;  Yarborough  v.  Tat«, 
14  T.  483. 

»  Allison  v.  G.,  C.  &  &  F.  Ry.  Co.,  29  S.  W.  Rep.  42& 


CHAPTER  XLIY. 


BILL  FOR  A  NEW  TRIAL. 


§  686.  New  trial  may  be  granted  after 

the  term. 
687.  Nature  of  the  proceeding. 


688.  Procedure. 

689.  Judgment  on  service  by  publica- 

tion. 


§  686.  New  trial  may  be  granted  after  the  term. 

A  new  trial  may  be  granted  after  the  expiration  of  the  term  at 
which  the  judgment  was  rendered.  The  party  must  show  sufficient 
matter  to  have  entitled  him  to  a  new  trial,  if  applied  for  during  the 
term,  and  a  sufficient  legal  excuse  for  not  having  then  made  his 
application.1  If  the  application  is  granted,  the  enforcement  of  the 
judgment  will  be  stayed  by  an  injunction;  and  at  the  succeeding 
term  of  the  court  the  verdict  and  judgment  will  be  set  aside  and 
the  case  reinstated  for  trial.2  As  the  application  for  a  new  trial, 
made  after  the  term  is  passed,  must  disclose  equitable  grounds, 
sufficient  in  themselves  to  entitle  a  party  to  a  new  trial,  the  grant- 
ing of  such  new  trial  is  as  properly  a  matter  of  revision  by  the  ap- 
pellate court  as  the  granting  of  any  other  equitable  relief.3 

An  original  action  which  has  for  its  object  the  readjudication  of 
matters  determined  in  a  former  suit  between  the  same  parties,  and 
is  based  on  grounds  which  could  properly  have  been  urged  in  a 
motion  for  new  trial,  cannot  be  maintained,  unless  it  is  shown  that 

1  Gross  v.  McClaren,  8  T.  341;  Spencer  v.  Kinnard,  12  T.  180;  Cook  v.  Garza,  13 
T.  431;  Kitchen  v.  Crawford,  13  T.  516;  Caperton  v.  Wanslow,  18  T.  125;  Goss 
v.  McClaren,  17  T.  107;  Fisk  v.  Miller,  20  T.  572;  Burnley  v.  Rice,  21  T.  171 ;  Varde- 
man  v.  Edwards,  21  T.  737;  Gregg  v.  Bankhead,  22  T.  245;  Chambers  v.  Shaw,  23 
T.  165;  Power  v.  Gillespie,  27  T.  370;  Plummer  v.  Power,  29  T.  6;  Hatchett  v. 
Conner,  30  T.  104;  Davis  v.  Terry,  33  T.  426;  Harris  v.  Haveman,  1  App.  C.  C., 
§  802;  Alexander  v.  San  Antonio  Lumber  Co.,  13  S.  W.  Rep.  1025.    It  seems  clear, 
on  principle  and  authority,  that  if  it  were  still  in  a  party's  power  to  move  for  a 
new  trial  in  the  court  that  tried  the  cause,  he  could  only  be  justified,  if  at  all, 
in  resorting  to  a  separate  suit,  in  the  nature  of  a  bill  in  equity,  by  showing  that 
under  the  circumstances  the  remedy  by  motion  was  inadequate  or  uncertain. 
Bryorly  v.  Clark,  48  T.  345. 

The  fact  that  a  person  is  poor  is  no  reason  why  he  should  not  be  held  to  the 
same  rule  of  diligence  in  the  prosecution  of  suits  instituted  by  himself  that  is 
prescribed  for  other  persons.  Harn  v.  Phelps,  65  T.  592;  McGloin  v.  McGloin, 
70  T.  634  (8  S.  W.  Rep.  305). 

2  Gross  v.  McClaren,  8  T.  341. 

'Gross  v.  McClaren,  8  T.  341.  A  new  trial  will  not  be  granted  after  the  term, 
when  an  application  for  a  new  trial  for  the  same  cause  has  been  made  during 
the  term  and  overruled,  the  party  having  an  adequate  remedy  by  appeal. 
Metzger  v.  Windier,  35  T.  378. 


"•'•]  HILL   FOB   A   KEW    TRIAL.  .,}7 

the  plaintitT  was  prev.-m.-d  from  making  his  motion  during  the 
;it  which  tlie  judgment  sought  to  be  set  aside  was  rendered. 
If  the  m«'ti»n  was  made  and  abandoned,  that  fact  is  fatal  to  a  new- 
suit  when  brought  for  the  same  purpose.     If  the  twial  judj:: 

>n  demurrer,  and  the  party  failed  either  to  amend  or  appeal, 
beiuir  n»»  sufficient  cause  to  prevent  him  from  so  doing,  he  can- 
•uaintain  an  original  action.1 

?'  687.  Nature  of  the  proceeding. 

A  bill  to  obtain  a  new  trial  after  the  close  of  the  terra  is  of  the 
nature  of  a  proceeding  in  equity,  and  is,  therefore,  govern*- 

equitable  principles. J     The  proceeding  is  n«.t  fav.uvd.  but  is  al 

ied  by  emms  of  equity  with  extreme  jral«.usy.  and  the  grounds 
uj>on  which  interference  will  be  allowed  are,  confev-  TOW 

and   restricted.3     It   must   appear:  .  1 1  That  the   former  judiri. 

-•d  by  any  negligence  of  him  who  seeks  to  set  it  aside, 
but  that  diligence  was  used  to  prevent  it.  cit  That  he  had  a  good 
defense  to  the  action,  which  he  was  prevented  from  making  by  fraud, 
;«'iit,  or  the  acts  of  the  opp<»inir  party,  wholly  unmixed  with 
any  fault  or  negligence  of  his  own.  <:>)  That  there  is  good  cause 
t<>  believe  that  a  different  result  will  be  obtained  by  a  n 

:ie  pleadings  and  issues  of  the  former  suit,  and  its  result,  must 
r  forth  distinctly  and  clearly.4     The  complainant  must  be  able 
•:  peach  the  justice  and  equity  of  the  verdict  of  which  he  com- 
plains;* but  this  ground  is  not  alone  sutlicient.* 

J  Bonian  v.  Parker.  6*  T.  4.3.1  (4  a  W.  Rep.  599). 

:  ir.-n.  17  T.  K»7:  Overton  v.  Blum,  50  T.  417;  Hurnley  v.  Rice,  21 
T.  17.  ..  Terry.  I 

'Johnson  v.  Templeton.  t>o  T 

*  Johnson  v.  Templeton.  60  T.  23*:  Ni<-li..ls  v.  Dil.r.-ll.Ol  T.589;  Harn  v.  Phelps. 
»>->  T.  .V.i-J:   Mi -Murray  v.  Mi- Murray.  67  T.  665  (4  S.  W.  Hep.  3          ,-r  v.  Kin 

r,'  T.  1*0:  I'lummer  v.  Power.  29  T.  rtl:  Davis  v.  Terry.  88  T.  4.'- 
T.  171:  Vardeman  v.  E<hv;tr-K  -Jl  T.  7:'-7:  nv-rt-.n  v.  Hlui.. 
Han  18(98.  W.  Rep.  9o 

!-rrill  v.  H,,\*-i-  H»ve- 

inan.  1  App.  (  .,[   T.  4TJ.     K.|iutv  ui!l  n,.(  k'rant  a 

to  a  juilenu>nt  a  n«-\v  trial  when  the  failure  to  have  his  caw  properly  pr*- 

ultxl  from  the  negligence  or  mistakes  of  bis  counsel    BrownMm  T. 

II  s.  \V  Kep.966).    The  II  !.>t.'iitioi. 

r. » -in  of  a  party  whose  suit  is  being  tried,  and  who  is  thereby  <i  f  th  • 

t  of  hi-  own  t.-^tiiii'-riy.  i<  -ut'i.-i.-nt  in  a  -mt  to  obtain  a  tecoad  trial  of 

id--  failure  to  present  evidence  on  tl  trial. 

ami  this  though  tlu-  party  was  repreaented  by  counsel    The  failure  .,f  *u,-li  * 

:'..r  a  new  trial  within  the  period  prescribed  by  law.  at, 

M   ami   return  t"  the  court   r«»,m.  rantiot  >•*>  excused  by  the  fact  that  his 

i  to  til.-  the  pr..|wr  inoti-.n. an. 1  th.r  'iieaerrkje* 

••tlier  attorn. -y.     The  court,  on   pro|N-r  i    have  assigned 

WJ). 

rrill  v.  H.,h.-rt-.  >  T.  J-    1  I  s.  W  r  T,  1'ower,  89  T.  6. 

•Ham  v.  Plu-lps.  6-»  T.  5WL 


BILL    FOR   A   NEW   TRIAL.  [§  688. 

A  court  of  equity  will  vacate  a  judgment  or  decree  obtained  by 
false  testimony  if  it  be  shown  that  the  false  testimony  was  obtained 
through  the  procurement  or  connivance  of  the  party  to  be  bene- 
fited by  it.  The  discovery  after  the  term  of  a  material  fact,  which 
being  revealed  would  have  resulted  in  a  different  judgment,  and  of 
which  the  injured  party  was  unavoidably  ignorant  during  the  prog- 
ress of  the  cause,  and  which  such  party  could  not  know  by  rea- 
sonable diligence,  constitutes  a  basis  for  equitable  relief.1 

£  688.  Procedure. 

After  a  judgment  is  rendered,  and  the  court  has  adjourned  for 
the  term,  the  cause  has  passed  from  the  jurisdiction  of  the  court,, 
and  it  will  then  require  an  original  suit  to  set  the  judgment  aside, 
which  must  be  brought  in  the  ordinary  form,  with  service  on  the- 
opposite  party.2  Any  order  made  by  the  court  at  a  subsequent 
term  on  the  simple  motion  of  the  party  to  set  the  judgment  aside 
would  be  coram  nonjudice,  and  consequently  void.  The  remedy  is 
by  appeal  or  writ  of  error,  or  by  a  petition  in  the  nature  of  a  bill 
of  review;  or  if  the  judgment  is  absolutely  void,  its  enforcement 
may  be  perpetually  enjoined.3  In  order  that  the  injustice  of  the 
judgment  should  clearly  appear,  the  nature  and  character  of  the 
original  proceeding  should  be  set  out  in  the  petition,  and  there 
should  be  enough  of  the  contents  or  substance  of  the  pleadings  in_ 
the  original  suit  disclosed  to  enable  the  court  to  determine  with 
reasonable  certainty  what  was  really  the  issuable  matter  in  contro- 
versy on  which  complainant  relied  to  make  out  his  defense.4 

In  an  action  brought  for  the  new  trial  of  issues  determined  by  & 
former  judgment,  which  is  based  on  the  discovery  of  new  evidence, 
the  petition  should  set  forth  the  new  evidence  verbatim.  It  should 

1  McMurray  v.  McMurray,  67  T.  665  (4  S.  W.  Rep.  357).  It  is  held  in  this  case 
that  relief  may  be  obtained  against  a  judgment  in  a  divorce  case,  when  pro- 
cured by  the  fraud  of  one  of  the  parties,  when  the  complaining  party  was  pre- 
vented by  such  fraud  from  presenting  the  case  fully  at  the  time  the  decree  was 
entered,  if  there  was  no  vrant  of  diligence;  and  such  relief  may  be  obtained  in 
a  new  suit  brought  to  correct  the  wrong,  though  begun  after  the  close  of  the 
term  at  which  the  decree  was  rendered.  The  doctrine  announced  in  Green  v.. 
Green,  2  Gray,  861,  in  regard  to  the  exercise  of  such  revisory  powers  in  a  suit 
brought  after  the  close  of  the  term  at  which  the  decree  was  entered,  disapproved 
or  qualified. 

In  a  suit  to  annul  a  decree  dividing  the  community  property,  rendered  in  a 
divorce  proceeding,  on  the  ground  that  it  had  been  procured  by  fraud  and  per- 
jury, the  proceedings  so  far  as  they  related  to  the  divorce  not  being  attacked, 
errors  of  the  trial  court  touching  matters  settled  by  the  granting  of  the  divorce 
are  immaterial.  McMurray  v.  McMurray,  78  T.  584  (14  S.  W.  Rep.  895). 

2Chisholm  v.  Day,  1  App.  C.  C.,  §  527;  Marcus  v.  Hemphill,  1  App.  C.  C.,§  1024j. 
Ragsdale  v.  Green,  36  T.  193. 

»  Ragsdale  v.  Green,  36  T.  193. 

4  Johnson  v.  Templeton,  60  T.  238. 


§  689.]  BILL   FOB  A   NEW   TRIAL,  '  i  » 

be  contained  in  the  accompanying  affidavits  of  ;  •  sses  who 

will  testify,  or  the  absence  of  the  affidavits  should  be  satisfact 
accounted  for.  Tin-  petition  should  also  state  the  faets  constitut- 
ing diligence  used  to  discover  the  testimony  l>efore  the  former  trial. 
A  general  statement  of  the  character  of  the  evidence  discovered, 
and  that  due  diligence  was  used  to  discover  it  sooner,  will  not  be 
sufficient.1  In  the  trial  of  a  suit  to  open  a  decree  on  the  ground 
that  it  was  procured  by  perjury,  it  devolves  upon  the  plaintiff  to 
slx»\v  the  testimony  produced  on  the  former  trial,  and  to  show  that 
it  was  false.  Until  this  is  done  the  matter  of  the  justice  or  injus- 
tice of  the  first  judgment  cannot  be  considered.* 

A  proceeding  by  heirs  must  be  instituted  within  two  years  after 
the  youngest  attains  his  majority.*  The  rule  against  tacking  dis- 
abilities applies.4 

§  689.  Judgment  on  service  by  publication. 

In  cases  in  which  judgment  has  been  rendered  on  service  of  pro- 
cess by  publication,  where  the  defendant  has  not  appeared  in  person 
or  l>y  an  attorney  of  his  own  selection,  a  new  trial  may  be  gr.i 
by  the  court  upon  the  application  of  the  defendant  for  good  cause 
shown,  supported  by  affidavit,  filed  within  two  years  after  the 
dition  of  such  judgment.     A  petition  must  be  filed  and  service  of 
process  made  upon  the  parties  adversely  interested  in  the  judgment 
as  in  other  cases.     Process  on  such  judgment  will  not  be  suspended,, 
unless  the  defendant  or  party  applying  therefor  shall  give  1- 
with  two  or  more  good  and  sufficient  sureties,  to  be  approved  l»y 
the  clerk,  in  double  the  amount  of  the  judgment,  or  value  of  the 
property  adjudged,  payable  to  the  plaintiff  in  the  judgment,  condi- 
tioned that  the  party  will  prosecute  his  petition  for  new  trial  to 
effect,  and  will  perform  such  judgment  as  may  be  rendered  1- 
court  should  its  decision  be  against  him.    Where  property  has  been 
sold  under  the  judgment  and  execution  before  the  process  was  sus- 
pended, the  defendant,  should  he  defeat  the  plaintiffs  action,  shall 
not  recover  the  property  so  sold,  but  shall  have  judgment  against 
the  plaintiff  in  the  judgment  for  the  proceeds  of  such  sale.' 

Though  the  statute  contains  no  saving  clause  in  favor  of  def- 
ants  laboring  under  disability,  yet  such  defendants  are  protected  l.y 
article  3:57:i.  K. -vised  Statutes,  which,  in  effect,  provides  th;r 
period  of  disability  shall  not  be  deemed  a  portion  of  the  time  lim- 

i  Anderson  v.  Sutherland,  59  T.  409.    See  Burnley  v.  Rioe,  21  T.  181; 
v.  Dial,  10  T.  209. 

'McMurray  v.  McMurray,  78  T.  584  (14  S.  W.  Rep.  896> 
»McAnearv.  K(.|..  rson.  54  T.  230:  Mun-h,~..n  r.  White,  54  T.  78. 
«Bev  t  iv.  A  p|>.  349(258.  W.  Rep.  130>, 

•R.S.  1875-1378. 


£50  BILL   FOR   A   NEW    TRIAL.  [§  089. 

ited  for  the  commencement  of  an  action.1  The  rule  forbidding  the 
tacking  of  disabilities  applies  to  an  attack  upon  a  voidable  judgment 
by  bill  of  review.2  Where  a  non-resident  has  actual  notice  of  a  suit 
&nd  fails  to  appear,  no  greater  liberality  is  extended  to  him  than  to 
other  negligent  defendants.3 

A  judgment  in  a  suit  by  publication  to  foreclose  an  equitable  lien 
on  realty  for  taxes  and  insurance  paid,  against  the  unknown  heirs 
of  the  deceased  owner,  wherein  the  judgment  recited  that  the  de- 
fendants had  been  duly  cited  by  publication,  in  so  far  as  it  is  a  pro- 
ceeding in  rein  against  the  land,  is  valid,  and  could  only  be  set  aside 
by  a  bill  of  review  filed  for  that  purpose  within  two  years.4  The 
remedy  by  petition  for  review  is  additional  to  the  remedy  by  writ 
of  error.5 

The  "good  cause"  required  to  be  shown  in  an  application  under  the 
statute  necessitates  the  setting  forth  of  facts  which,  if  true,  would 
call  for  the  rendition  of  a  different  judgment.  The  allegations  in 
the  application  are  not  to  be  accepted  as  true,  and  the  new  trial 
granted  or  refused  alone  upon  their  sufficiency  or  insufficiency,  but 
they  may  be  controverted  and  evidence  heard  as  to  their  truth. 
The  practice  of  submitting  all  the  issues  in  one  trial,  now  thoroughly 
established  in  this  state  in  ordinary  suits  to  vacate  judgments,  would 
be  the  most  convenient  and  should  be  adopted.6 

1  Heirs  of  Brown  v.  Brown,  61  T.  45. 

2  Best  v.  Nix,  6  Civ.  App.  349  (25  S.  W.  Rep.  130). 

3  Roller  v.  Ried,  24  S.  W.  Rep.  655. 

<  Heidenheimer  v.  Loring,  6  Civ.  App.  580  (26  S.  W.  Rep.  99). 

5Chrisman  v.  Miller,  15  T.  159:  Doty  v.  Moore,  16  T.  591.  For  a  petition  held 
good  on  demurrer,  by  one  who  alleged  that  he  was  a  resident  of  the  state  at  the 
time  suit  was  instituted  against  him  and  that  he  had  a  good  defense,  see  Rich- 
ardson v.  Ellett,  10  T.  190.  The  petition  must  show  a  meritorious  defense,  and 
.an  excuse  for  not  moving  for  a  new  trial  in  proper  time.  Kitchen  v.  Crawford, 
13  T.  516;  Snow  v.  Hawpe,  22  T.  168. 

In  trespass  to  try  title,  the  plaintiff  claimed  as  purchaser  at  execution  sale, 
under  a  judgment  obtained  by  himself  against  the  defendant.  The  defendant 
pleaded  the  want  of  actual  notice  of  the  proceedings  under  which  the  judgment 
was  obtained  (the  judgment  being  rendered  on  service  by  publication);  that 
the  claim  sued  on  was  fraudulent  and  unjust  (specifying  in  what),  and  prayed 
that  the  judgment  be  vacated.  Held,  that  the  parties  being  the  same  in  both 
proceedings,  the  averments  of  the  answer  were  sufficient  to  support  it  as  a  bill 
of  review;  and  if  properly  supported  by  evidence,  to  authorize  the  reopening  of 
the  judgment,  and  the  setting  aside  the  sale  of  the  land.  Cundiff  v.  Teague,  46 
T.  475. 

«Keator  v.  Case,  31  S.  W.  Rep.  1099. 


CHAI'TKU   XLV. 


RKMITTITUR  AM)  AMKXDMEXT  OF  JUDGMKNT. 


690.  Excess  in  verdict  or  judgment. 

691.  In  vacation. 

692.  Release  of  damages  after  appeal 

693.  Mistakes  in  judgments. 


§  694.  Misrecitals  in  judgment* 
693k  Power  over  the  judgment  dur- 
ing the  term. 
098.  Release  of  errors. 


?  690.  Excess  in  verdict  or  judgment. 

Any  party  in  whose  favor  a  verdict  or  a  judgment  has  been  ren- 
dered may  in  open  court  remit  any  part  of  stu  i 
raent.     The  A///////'/'//-  is  noted  on  the  docket  and  e  •    the 

minutes,  and  execution  issues  for  the  balance  only  of  the  verd 
judgment  after  deducting  the  amount  remitted.1 

The  rule  in  this  state  is  that  where  the  damages  assessed  by  the 
jury  are  excessive,  and  there  are  no  fixed  principles  applicable  by 
which  the  true  measure  of  damages  ma  ••rmim-d,  as  in  ao- 

I  for  torts,  a  /  /•  will  not  cure  the  « 

the  cases  thus  holding  rest  upon  the  ground  that  an  e.\o- 
diet  shows  that  the  jury  did  not  pay  due  regard  to  the  evidence^ 
but  were  actuated  by  passion  or  prejudice  in  coming  to  their  con- 
clusion; and  that  to  allow  a  /•<  mittitur  of  a  part  of  the  damage* 
would  be  to  substitute  the  finding  of  the  court  for  th;r 

•A- here  the  damages  are  not  excessive,  and  th- 

improper  motives  on  the  part  of  the  jury,  the  rule  loses  its  applica- 
and  the  court  i_rives  judgment  for  a  sum  which  the  jury  hon- 
estly thought  the  plaintiff  should  recover;  that  is  if  they  honestly 
found  the  amount  of  the  verdict,  they  of  course  thought  that  the 
party  might  recover  the  amount  left  after  a  release  of  a  part.1 

Where  the  verdict  of  a  jury  is  required  to  fix  the  amour. 
damages,  and  they  find  an  excessive  amount,  neither  the  coiir 
counsel  can  determine  how  much  should  be  d  '•  t<»  mak- 

verdict  a  proper  one,  because  the  jury  alone  has  the  right  to  flx 

»  R.  &  13.W.  1354 

»Hoskins  v.  Hilling.  1  Apj..  f.  ('..  S  156;  Hardeman  v.  Morgan,  48  T.  108; 
Thomas  v.  Woinack.  18  T.  .>«•;  Hughe*  v.  Brooks,  85  T.  87 

•4:  O.,  C.  A  8.  F.  Ry.  Co.  v.  Coon,  60  T.  780  (7  a  W.  Repi  4W); 
Nunnully  v.  Taliaferro.  83  T.  286  (18  a  W.  Repi  14»);  Ma  P»c.  By.  Ca  T.  Ptory. 
8  Civ.  App.  78;  Donald  v.  Carpenter.  H  • 

»L  &  (J.  X.  Ry.  To.  v   Wilkys*.  6H  T.  617  (5  &  W.  Rep.  491).     In  Bean!  v.  M 
4  App.  C.  i  \vas  )i,-l.l  that  a  defendant  wa»  properly  allowed  to  remit 

all  that  was  fouud  in  liis  favor,  win  tli> T  in  the  nature  of  damages  or  offMt. 


652  REMITTITUR   AND   AMENDMENT   OF   JUDGMENT.       [§§  691,  692. 

such  uncertain  damages.  But  in  such  case,  where  the  evidence  is 
such  as  to  enable  the  court  to  determine  that  the  amount  of  the  re- 
duced verdict  was  authorized  by  the  evidence,  the  verdict  will  be- 
permitted  to  stand.1 

§  691.  In  vacation. 

A  remittitur  may  be  made  in  vacation  by  executing  and  filing 
with  the  clerk  a  release  in  writing,  signed  by  the  party  or  by  his 
attorney  of  record,  and  attested  by  the  clerk  with  the  seal  of  his 
office.  Such  release  constitutes  a  part  of  the  record,  and  any  exe- 
cution thereafter  issued  must  be  for  the  balance  only  of  the  judg- 
ment after  deducting  the  amount  remitted.2  A  remittitur  under 
this  article  will  meet  to  the  extent  of  the  release  any  complaint 
that  the  judgment  is  excessive.3 

§  692.  Release  of  damages  after  appeal. 

Any  party  in  whose  favor  a  judgment  has  been  rendered  may 
make  a  release  of  any  excess  in  the  court  of  civil  appeals ;  and  the 
court  may  then  revise  the  judgment  and  enter  such  judgment  as 
the  court  below  ought  to  have  entered  if  the  release  had  been  made 
before  the  appeal.4 

1  G.,  C.  &  S.  F.  Ry.  Co.  v.  Redeker,  75  T.  310  (12  S.  W.  Rep.  855);  Clifford  v.  Lee, 
23  S.  W.  Rep.  843.     An  inadvertent  error  in  the  amount  of  the  verdict,  which  is 
at  once  corrected  by  a  remittitur,  is  no  ground  for  reversal    Cotter  v.  Parks,  80 
T.  539  (16  S.  W.  Rep.  307). 

It  was  error  in  the  charge  to  allow  interest  at  ten  per  cent,  in  a  case  not  on 
contract  for  such  rate;  but  when  the  error  was  shown  in  motion  for  new  trial, 
the  plaintiff  had  the  right,  by  remitting  the  excess  over  eight  per  cent.,  to  cure 
the  error.  Kinkier  v.  Junica,  84  T.  116  (19  S.  W.  Rep.  359).  Evidence  was  ad- 
mitted and  the  issue  submitted  to  the  jury  as  a  basis  for  damages  (among 
others)  of  the  amount  paid  for  medicines  during  recovery  from  an  injury.  This 
was  not  alleged  in  the  pleadings.  There  was  direct  evidence  that  the  injury 
and  consequent  suffering  were  great.  The  largest  estimate  of  cost  of  medicines 
did  not  exceed  $500.  A  remittitur  of  that  sum  cured  the  error  in  admitting  the 
testimony  and  submitting  the  issue  in  absence  of  pleadings.  G.,  H.  &  S.  A.  Ry. 
Co.  v.  Duelin,  86  T.  450  (25  S.  W.  Rep.  406).  Plaintiff  sued  for  a  wrongful  dis- 
charge under  a  contract  of  employment.  Trial  by  jury  was  had  and  verdict 
for  plaintiff.  It  was  held  that  the  court  properly  permitted  him  to  remit  the 
amount  of  $10,  because  it  had  accrued  after  the  filing  of  the  suit.  Goldstein  v. 
Cook,  22  S.  W.  Rep.  762.  The  error  of  an  excessive  verdict  is  not  cured  by  a 
remittitur  by  counsel  pending  a  motion  for  new  trial  entered  upon  intimation 
of  the  court's  views  though  not  upon  any  formal  ruling.  M.,  K.  &  T.  Ry.  Co.  v. 
Perry,  8  Civ.  App.  78  (27  S.  W.  Rep.  496). 

2  R.  S.  1355. 

» Russell  v.  Nail,  79  T.  664  (15  S.  W.  Rep.  635).  By  reference  to  article  52,  Pas- 
chal's  Digest,  it  is  held  that  the  right  to  enter  a  remittitur  exists  without  ac- 
tion by  the  court  thereon  or  notice  to  the  adverse  party;  and  it  seems  that  the- 
ruling  might  have  been  sustained  by  reference  to  the  above  article,  although  it 
differs  in  some  respects  from  that  cited.  York  v.  Le  Gierse,  1  App.  C.  C.,  §  1328. 

<  R.  S.  1024. 


'•J.J  Mil  mil;    \M»    iMBTDimn    01    .     .  >. .  v  :•  NT.  •  '>.'•". 

The  following  provision   is  also  mail--  !.y  an  act  passed  in  1- 
"In  all  civil  cases  no\v  pending,  or  that  may  hereafter  be  appealed 
to  any  court  of  civil  appeals  of  this  state,  and  such  court  shall  IKJ 
of  the  opinion  that  the  verdict  ami  judgment  of  the  trial  court  is 
•-.and  for  that  reason  only  said  cause  should  he  reversed, 
then  it  shall  be  the  duty  of  such  court  of  civil  appeals  to  in.i 
to  the  party  in  whose  favor  such  judgment  was  rendered,  or  his 
attorneys  of  record,  the  amount  of  the  excess  of  such  verdict  and 
jud-rment:  ;md  said  court  shall,  at  the  same  time,  indicate  to  such 
party.  <T  his  attorney,  within  what  time  he  may  file  a  remittit 
such  excess,  and  if  such  rtinittitur  shall  he  so  tiled,  then  the  • 
shall  reform  and  aHirm   such  judgment  in  accordance  therewith;  if 
not  filed  as  indicated,  then  to  be  reversed.     Whenever  any  court  of 
civil  appeals  shall  indicate  that  a  verdict  is  excessive,  as  hereinbe- 
fore provided,  and  no  /•>  inittitur  shall  be  tiled,  as  herein  provided, 
no  evidence  shall  be  allowed  nor  allusion  made,  in  any  subsequent 
trial,  of  the  action  of  such  court  of  civil  appeals  in  reference  to  the 
amount  of  excess  of  such  verdict/'1     Under  this  statute  the  sugges- 
tion of  a  /v  initfiinr  is  made  by  a  court  of  civil  appeals  without 
motion  by  appellee,  and  the  appellant  is  not  entitled  to  notice  that 

//// /V'//1  will  be  entered.* 

A  judgment  /«//  <//</'/  was  rendered  for  an  excess  of  interest 
After  an  appeal  was  perfected  by  the  defendants  the  plaintiffs  en- 
tered a  /•.  inHtllnr^  and  it  was  held  that  it  was  made  too  late  to  save 
!  of  the  appeal.  The  general  rule  seems  to  be  to  allow  the 
plaintiff  in  error  his  costs  when  the  judgment  has  been  by  default 
and  is  excessive  and  the  /•.  mifftfnr  is  not  entered  lief.  ••••  rit  of 

error  is  sued  out.1*     It  seems  to  be  the  rule  that  a  remittitur  : 
be  entered  before  the  opposite  party  has  taken  steps,  onerous  in 
their  nature,  to  perfect  an  appeal  or  writ  of  error.     If  this  is  not 
done,  the  /•'  mittit'ir  cannot  be  made  in  the  appellate  court  so  as  to 
charge  the  costs  to  the  appellant,4    The  costs  in  such  case  will  ta 
charged  to  the  appellee.5    An  error  in  making  the  judgment  bear 
interest  at  a  rate  exceeding  the  rate  allowed  by  law  may  he  . 
by  a  remitttfur  of  tho  excess  on  appeal.6     A  id^ment  was 

reversed  because  of  an  excess,  the  appellee  was  permitted  to  en 

•fifnr,  and  the  judgment  was  reformed  and  rendered,  hut  at  tho 
of  the  appellee.7     Hut  the  rule  seems  to  be  settled  that  a  / 

i  Acts  1898,  p.  89;  R.  S.  1029o,  1029ft. 

HAS    \    i:y.  Co.  v.  Duelm,  34  S.  W.  Rep.  884 
»  Pearce  v.  Tootle,  75  T.  148  ( U  S.  \V. 

•Fry  v.  I.on^tr.-.-t.  i  A  pp.  < '.  ('..  $  **:  t  lin-timn  v.  Davenport,  31  T.  488;  Ar 
v.  Williams.  V  \ich..ls,,n  v.  Kn.l,-.  1  AJ.JW  C.  O,  g  49ft. 

.  MiinHl    v.  Ryan.  1    AH-   '  . .  Si.upkins,  2  App.  G  C, 

g  71 :  G.,  C.  &  a  F.  Ry.  Co.  v.  K.  y.  I  App,  G  C.,  9988. 
•Harrison  v.  State  Central  Bank.  1   \;  376. 

'O.,  C.  &  a  F.  Ry.  Co.  v  S  858.    A  party  who  has  entered  A 


654  REMITTITUR   AND    AMENDMENT   OF   JUDGMENT.  [§  692. 

tltur  comes  too  late  after  the  appellate  court  has  acted  upon  the- 
record,  and  has  reversed  and  remanded  the  cause,1  especially  where- 
it  does  not  appear  from  the  opinion  that  the  judgment  was  reversed 
on  the  sole  ground  that  it  was  excessive;2  but  there  are  cases  which 
appear  to  be  an  exception  to  this  rule.3 

Where  the  verdict  shows  the  items  and  amount  of  each  allowed, 
and  some  of  them  are  without  allegations  in  whole  or  in  part  to 
sustain  them,  a  remittitur  will  be  allowed  on  appeal  as  to  such 
items ;  especially  where  the  excess  is  not  due  to  passion  or  preju- 
dice.4 

When,  under  the  charge  of  the  court,  which  was  correct  except 
as  to  the  basis  on  which  damages  were  allowed  to  appellee,  a  ver- 
dict was  returned  for  him  for  damages,  with  no  sufficient  evidence 
to  support  it,  he  was  permitted  by  the  supreme  court  to  file  within 
twenty  days  a  remittitur  of  such  damages,  as  a  condition  on  which 
the  judgment  should  be  affirmed  in  other  respects,  but  on  his  fail- 
ure to  file  such  remittitur  the  judgment  to  be  reversed.5 

remittitur  in  the  court  below  to  avoid  the  granting  of  a  new  trial  cannot  have 
it  set  aside  on  appeal.  Floyd  v.  Efron,  66  T.  221  (18  S.  W.  Rep.  497).  Where  by 
a  clerical  error  the  judgment  is  written  for  too  large  a  sum,  a  remittitur  entered 
before  costs  incurred  in  the  appellate  court  will  obviate  the  objection  and  carry 
costs  against  the  appellant.  Lowdon  v.  Fiske,  27  S.  W.  Rep.  180. 

1  G.,  H.  &  S.  A.  Ry.  Co.  v.  Wesch,  85  T.  593  (22  S.  W.  Rep.  957). 

2  Chadwick  v.  Meredith,  40  T.  380. 

3  In  G.,  C.  &  S.  F.  Ry.  Co.  v.  Trawick,  80  T.  270  (15  S.  W.  Rep.  568;  18  S.  W.  Rep. 
948),  the  verdict  found  two  distinct  items,  and  a  remittitur  as  to  one  item  was 
permitted  after  a  reversal,  and  the  judgment  was  reformed  and  rendered.    In 
Sanger  v.  Henderson,  1  Civ.  App.  412  (21  S.  W.  Rep.  114),  it  was  held  that  an  offer 
by  appellee  (plaintiff  below)  to  remit  part  of  the  damages  recovered  and  to  dis- 
miss as  to  one  of  two  appellants  comes  too  late  in  a  motion  for  rehearing  on 
appeal 

A  verdict  was  found  for  $7,500  for  personal  injuries.  On  appeal  the  judg- 
ment below  was  reversed  on  the  ground  of  the  improper  admission  of  the  opin- 
ion of  plaintiff  as  to  his  expenses  being  $750  or  §800.  In  motion  for  rehearing 
in  the  court  of  civil  appeals  the  appellee  offered  to  remit  $800,  and  asked  judg- 
ment for  the  balance.  In  the  supreme  court  it  was  held  that  as  the  testimony 
to  the  amount  of  expenses  occasioned  by  the  injuries  may  have  impressed  the 
jury  as  to  the  extent  of  the  injuries,  and  thus  have  increased  the  general  ver- 
dict, such  remittitur  could  not  be  allowed  to  cure  the  error  of  admitting  the 
illegal  testimony.  G.,  H.  &  S.  A.  Ry.  Co.  v.  Wesch,  85  T.  593  (22  S.  W.  Rep.  957). 

« Ft.  W.  &  D.  C.  Ry.  Co.  v.  Measles,  81  T.  474  (17  S.  W.  Rep.  124). 

»Zapp  v.  Michaelis,  58  T.  270.  In  L  &  G.  N.  Ry.  Co.  v.  Brazzil,  78  T.  314  (14  S. 
W.  Rep.  609),  the  plaintiff  was  given  the  option  of  remitting  exemplary  dam- 
ages and  having  the  judgment  affirmed,  or  of  retaining  them  and  submitting  to 
a  reversal. 

Where  the  verdict  awarded  damages  on  an  item  which  was  not  proved,  the 
supreme  court  gave  the  party  the  option  of  remitting  the  amount  within  ten 
days  and  having  costs  adjudged  against  him,  or  of  having  the  judgment  re- 
versed. Sabine  &  E.  T.  Ry.  Co.  v.  Johnson,  7  S.  W.  Rep.  378.  Where  plaintiffs 
in  their  petition  claimed  $640.60  as  actual  damages  and  $1,050  as  exemplary  dam- 
ages, and  obtained  a  verdict  and  judgment  for  $1  actual  damages  and  $1,800 


§  693.]  EEMITTITUE    AND    AMENDMENT   OF   JUDGMENT. 

The  supreme  court  declined  to  consider  whether  a  verdict  for 
damages,  clearly  excessive,  presented  a  case  where  a  rttnifttfur  was 
proper  to  correct  the  excess  (after  the  remittitur  of  the  excess  had 
been  entered),  when  no  specific  assignment  of  errors  was  found  com- 
plaining of  the  excessive  verdict.1 

£  693.  Mistakes  in  judgments  corrected. 

AVhere  there  is  a  mistake  in  the  record  of  a  judgment  or  decree, 
the  judge  may,  in  open  court,  and  after  notice  of  the  application 
therefor  has  been  given  to  the  parties  interested  in  such  judgment 
or  decree,  amend  the  same  according  to  the  truth  and  justice  of  the 
case,  and  thereafter  the  execution  must  conform  to  the  judgment 
as  amended.2  Notice  is  required  in  all  cases.' 

Due  diligence  must  be  used  to  procure  the  correction  of  a  judg- 
ment entered  by  mistake.  It  should  be  called  to  the  attention  of 
the  court  within  the  time  prescribed  by  law,  and  when  the  mistake 
lias  resulted  in  a  judgment  against  the  party  complaining,  the  mo- 
tion to  correct  should  be  accompanied  by  an  affidavit  as  to  merits.4 

exemplary  damages,  it  was  held  that  the  error  would  require  a  reversal  unless 
plaintiffs  (appellees)  filed  a  remit  tit  ur  of  all  damages  recovered  above  the  sum 
of  $1.050.  Gregory  v.  Coleman,  3  Civ.  App.  166  (22  S.  W.  Rep.  181).  A  judgment 
for  $500  damages,  rents  and  profits,  in  a  case  where  legal  interest  only  is  the 
measure,  will,  on  the  appellee  remitting  all  damages  in  excess  of  an  amount 
sufficient  to  cover  legal  interest,  be  reversed  and  reformed  by  the  appellate 
court,  and  rendered  for  what  it  should  have  been  in  the  court  below.  Carter  v. 
Roland,  53  T.  540. 

Several  lots  of  cattle,  belonging  to  separate  owners,  were  received  for  ship- 
ment by  a  railway  company.  Suit  was  brought  for  damage  to  the  cattle  by  one 
of  the  owners  as  assignee  of  the  claims  of  all  the  owners  except  that  of  one  G. 
The  damages  found  by  the  court  included"  the  cattle  of  G.  Appellee  filed  in  the 
court  of  civil  appeals  a  remittitur  of  $5  per  head  for  each  head  of  the  G.  cattle, 
with  interest  on  said  amount  from  the  date  of  the  judgment.  As  this  was  the 
amount  of  damage  per  head  claimed  in  his  petition,  and  as  the  court  could  not 
have  allowed  any  greater  sum  than  this  as  the  damage  to  said  cattle,  it  was  held 
that  the  remittitur  should  be  allowed,  and  that  the  judgment  below  should  be 
reformed  to  correspond  therewith.  St  L.,  A.  &  T.  Ry.  Co.  v.  Turner,  1  Civ.  App. 
.'0  S.  W.  Rep.  1008). 

In  a  suit  brought  by  a  surveyor  to  recover  a  locative  interest,  or  its  value,  of 
on. --third  of  ten  sections  of  land  located  and  surveyed  by  him.  after  service  of 
petition,  and  without  appearance  by  defendant,  an  amended  petition  was  tileil. 
claiming  a  locative  interest  in  another  section  of  land  located  in  a  different 
county.  Judgment  by  default  was  rendered,  embracing  the  eleven  sections,  and 
pr..\  Mime  that  if  the  defendant  failed  to  make  partition  of  the  land  in  a  time 
specified,  plaintiff  recover  a  gross  amount  of  money  specified  in  lieu  of  the  land. 
In  the  absence  of  evidence  of  the  value  of  the  additional  section  of  land  de- 
scribed in  the  amended  petition,  it  was  held  that  a  remittitur  of  one-eleventh  of 
the  judgment  would  not  cure  the  error,  and  the  cause  was  reversed.  T.  A.  N. 
O.  Ry.  Co.  v.  Whit-.  ">  T.  251. 

JSabine  &  E.  T.  Ry.  Co.  v.  Hadnot,  67  T.  503  (4  S.  W.  Rep.  188). 

2R  8.1356. 

»Byars  v.  .Justin.  ','  App.  C.  C.,  §  687. 

« Pipkin  v.  Kaufman,  02  T.  45.    In  this  case  there  was  judgment  by  default 


€56  EEMITTITUR   AND    AMENDMENT   OF   JUDGMENT.  [§  693. 

On  the  adjournment  of  a  term  of  court  at  which  a  final  judgment 
has  been  rendered,  the  jurisdiction  of  the  court  over  the  case  on  the 
merits  is  exhausted.  If  there  is  an  error  in  the  judgment,  and  the 
court  has  no  appellate  revisory  power  over  its  final  judgments, 
the  error  can  only  be  corrected  by  some  superior  tribunal  to  which 
revisory  power  has  been  committed.  "When  a  judgment  is  based 
on  facts  which  the  court  is  warranted  in  presuming,  from  the  rec- 
ord, to  exist,  and  upon  the  existence  of  which  the  jurisdiction  of 
the  court  or  the  validity  of  the  judgment  depends,  as,  for  instance, 
that  an  ostensible  party  to  the  proceeding  was  living,  when  he  was, 
in  fact,  dead,  such  judgment,  whether  absolutely  void  or  voidable, 
may  be  set  aside  and  corrected  on  a  writ  of  error  coram  nobis^y 
the  court  rendering  it.  But  when  the  error  is  of  law,  though  touch- 
ing a  matter  of  fact  appearing  upon  the  record,  and  assignable  as 
error,  and  is  directly  passed  upon  or  affirmed  by  the  court,  it  can, 
neither  be  reversed  nor  corrected  on  a  writ  of  error  coram  nobis, 
nor  by  motion  after  the  adjournment  of  the  term  at  which  it  was 
rendered ;  in  such  case  relief  can  only  be  had,  if  at  all,  by  appeal  or 
writ  of  error  to  a  superior  and  supervisory  tribunal.1 

An  application  to  correct  a  judgment  by  parol  testimony  on  the 
ground  of  mistake,  made  twenty-six  years  after  the  alleged  mistake 
occurred,  with  no  allegation  of  ignorance,  comes  too  late.  Where 
it  is  sought  to  correct  a  mistake  in  a  judgment  by  application  in 
the  court  where  it  occurred,  the  application,  by  analogy  to  a  bill  of 
review,  would  be  limited  to  two  years  from  the  time  of  the  dis- 
covery of  such  mistake.2 

on  a  note,  and  it  was  assigned  as  error  that  the  judgment  was  not  supported  by 
evidence  of  the  production  of  the  note.  The  statement  of  facts  showed  that 
the  court  acted  on  the  assumption  that  the  note  was  in  court  and  filed  in  court 
with  the  clerk,  through  the  representations  made  by  the  plaintiff's  attorney 
when  the  judgment  was  rendered.  There  was  nothing  in  the  record  calculated 
to  rebut  the  inference  that  the  note  was  there,  and  filed  as  stated,  and  that  the 
judgment  was  entered  up  and  the  damages  assessed  by  the  clerk  with  the  note 
before  him.  On  this  state  of  facts  it  was  held  that  if  any  mistake  was  made 
the  defendant  ought  to  have  moved  the  court  to  correct  it  during  the  term  by 
filing  a  motion  to  set  aside  the  judgment  by  default,  such  motion  to  be  ac- 
companied by  an  affidavit  of  merits. 

1  Milam  Co.  v.  Robertson,  47  T.  222.  The  nature  of  a  writ  of  error  coram  nobis 
is  considered  in  Weaver  v.  Shaw,  5  T.  286.  It  is  said  to  lie  to  correct  errors  of 
fact.  The  proper  mode  of  proceeding  is  by  petition  to  the  court  where  the 
error  occurred.  By  analogy  to  the  period  allowed  for  a  bill  of  review  the  pe- 
tition should  be  filed  within  two  years. 

A  bill  of  review  for  matters  of  fact  or  errors  of  law  apparent  upon  the  face 
of  the  record  will  not  lie.  The  remedy  is  by  appeal  or  writ  of  error.  Schlen- 
ning  v.  Duffy,  37  T.  527. 

'-'  Williamson  v.  Wright,  1  U.  C.  711,  citing  Milam  Co.  v.  Robertson,  47  T.  235; 
Weaver  v.  Shaw,  5  T.  289;  Connolly  v.  Hammond,  51  T.  647;  Smith  v.  Fly.  24  T. 
3.V->;  Kuhlman  v.  Baker,  50  T.  636;  Munson  v.  Hallowell,  26  T.  475;  Alston  v. 
Richardson,  51  T.  6;  2  Story,  Eq.  Jur.,  §  1521a. 


4.]  REMITTITUR   AND    AMENDMENT   OF   JUDGMENT. 

The  omission  of  the  clerk  to  enter  a  judgment,  the  character  of 
which  is  apparent  from  the  entry  made  by  the  judge  on  his  docket, 
cannot  prejudice  the  rights  of  one  who  obtained  it.  The  correction 
may  l»e  m;nl«»  on  motion  of  a  party,  made  in  answer  td  a  motion  by 
the  opposite  party  to  reinstate  the  cause,  when  all  the  parties  are 
brought  before  the  court.1 

Articles  135ft  and  1357  of  the  Revised  Statutes,  being  articl* 
and  51  of  Paschal's  Digest,  are  cited  indiscriminately  by  the  courts 
in  some  cases,  and  it  has  been  held  that  under  either  article  a  cor- 
>n  after  the  term  can  only  be  made  by  matter  appearing  of 
record.1 

§  694.  Misrecitals  in  judgment  corrected. 

AVhere,  in  the  record  of  any  judgment  or  decree  of  any  court, 
there  shall  be  any  mistake,  miscalculation  or  misrecital  of  any  sum 
or  sums  of  money,  or  of  any  name  or  names,  and  there  shall 
be  among  the  records  of  the  cause  any  verdict  or  instrument  of 
writing  whereby  such  judgment  or  decree  may  be  safely  amended, 
it  is  made  the  duty  of  the  court  in  which  the  judgment  or  decree 
was  rendered,  and  the  judge  thereof  in  vacation,  on  application  of 
either  party,  to  amend  such  judgment  or  decree  thereby,  according 
to  the  truth  and  justice  of  the  case;  but  the  opposite  party  must 
have  reasonable  notice  of  the  application  for  the  amendment.  The 
judge  making  such  correction  in  vacation  must  embody  the  same  in 
a  judgment,  and  certify  thereto,  and  deliver  the  same  to  the  clerk, 
who  must  enter  it  in  the  minutes.  Such  judgment  constitutes  a 
part  of  the  record  of  the  cause,  and  any  execution  thereafter  issued 
must  conform  to  the  judgment  as  corrected.1 

Reasonable  notice  is  required  in  all  cases.4  Paschal's  Digest  pro- 
vided for  reasonable  notice,  and  it  was  held  that  notice  of  four  days 
was  sufficient  on  an  application  to  correct  a  miscalculation  of  inter- 
est* 

A  variance  in  the  judgment  as  to  the  names  of  the  defendants 
may  be  amended  by  the  lower  court  after  an  appeal  has  been  JKT- 
fected.  This  being  the  only  error,  the  judgment  as  amended  will 
be  affirmed.1  A  judgment  may  be  amended,  at  a  term  of  court  held 
aftrr  the  one  at  which  the  judgment  entry  was  made,  by  inserting 
therein  the  name  of  one  of  the  parties  to  the  cause,  omitted  through 

»  Whittaker  v.  Gee,  63  T.  435. 

•  Ma  Pac.  Ry.  Ox  v.  Haynes,  82  T.  448, 456  (18  a  W.  Rep.  605);  Russell  v.  Mil- 
ler, 40  T.  495. 

»R,a  1357,  1358. 

«Byars  v.  Justin,  2  Apjx  G  C,  §  687;  Ramsey  v.  McCauley,  9  T.  106;  McNairy 
v.  Castleberry,  6  T.  28k 

•  P.  D.,  art.  51;  Coffee  v.  Black,  60  T.  117. 

•  Hurlbut  v.  Lang,  29  a  W.  Rejn  11 09. 

43 


658  REMITTITUR    AND    AMENDMENT   OF   JUDGMENT.  [§  694. 

mistake,  when  ttie  notes  upon  the  docket  of  the  presiding  judge  can 
furnish  data  by  which  to  make  the  correction.  Such  amendment 
may  be  made  after  the  dismissal  of  an  appeal,  based  on  the  defect 
in  the  judgment.1 

Correction  of  a  judgment  after  the  term  can  only  be  made  under 
the  above  statute  by  matter  appearing  in  the  record;  also  where 
the  amendment  is  made  under  article  1356  of  the  Revised  Statutes.2 
The  amendment  may  extend  to  entering  judgment  against  a  party 
not  affected  by  the  original  entry,  when  authorized  by  the  verdict 
and  former  proceedings  in  the  case.3 

i  Whittaker  v.  Gee,  63  T.  435.  In  a  suit  by  George  J.  McCauley  v.  John  Ram- 
sey, the  judgment  was  entitled  J.  H.  McCauley  v.  John  Ramsey.  After  the  de- 
fendant had  sued  out  a  writ  of  error,  the  error  was.  on  motion  of  the  plaintiff, 
after  notice  to  the  defendant's  attorney,  corrected  by  order  of  the  court,  by  the 
insertion  of  the  name  of  the  plaintiff,  which  was  sufficiently  sllown  by  the  peti- 
tion, citation,  etc.  Ramsey  v.  McCauley,  9  T.  106. 

-'  Mo.  Pac.  Ry.  Co.  v.  Haynes,  82  T.  448  (18  S.  W.  Rep.  605).  This  suit  was  brought 
for  the  value  of  eighty-seven  bales  of  cotton  burned  on  cars  of  the  railway  com- 
pany. The  case  was  tried  by  the  judge.  The  bills  of  lading  executed  by  de- 
fendant were  attached  to  the  petition.  One  was  for  fifty-one  bales,  one  for 
thirty  bales,  and  the  other  for  six  bales.  The  judge  rendered  his  decision  for 
plaintiffs  for  the  eighty-seven  bales  burned,  valuing  it  at  nine  and  one-half  cents 
a  pound,  with  interest.  The  judge  in  making  up  the  amount  of  value,  by  over- 
sight omitted  the  six  bales.  The  railway  company  appealed.  After  appeal  and 
at  the  next  term  the  plaintiffs  by  motion  obtained  an  order  amending  the  judg- 
ment, adding  the  value  of  the  six  bales.  An  ineffectual  effort  was  made  to  have 
the  amended  judgment  recognized  by  the  supreme  court  in  the  appeal.  The 
judgment  as  originally  entered  was  affirmed.  The  railway  company  then  paid 
the  judgment  so  affirmed.  The  plaintiffs  obtained  execution  for  the  amount  of 
the  six  bales  added  by  the  amendment.  Injunction  was  applied  for  by  the  de- 
fendant, and  on  hearing  it  was  dissolved.  The  oversight  of  the  court  was  not 
of  that  character  that  could  be  corrected  after  the  term  by  motion  under  the 
statute.  It  was  a  judicial  mistake,  and  could  be  corrected  only  by  motion  for  a 
new  trial  or  appeal.  What  the  trial  judge  remembered  as  explanatory  of  the 
error  could  not  be  made  available  on  the  motion  to  amend.  The  bill  of  lading 
attached  to  the  petition  for  the  six  bales  omitted  was  not  a  part  of  the  record 
from  which  amendment  could  be  made. 

In  Hinzie  v.  Kempner,  82  T.  617  (18  S.  W.  Rep.  659),  the  court  properly  refused 
at  a  subsequent  term  to  alter  the  judgment  so  as  to  apply  to  the  south  half  of  a 
described  one  hundred-acre  tract  instead  of  the  north  half.  Neither  fraud  nor 
mistake  was  shown,  nor  was  delay  explained.  The  mistake,  if  it  was  one,  was 
judicial  and  not  clerical. 

3  Russell  v.  Miller,  40  T.  495.  In  an  action  upon  a  note,  the  jury  rendered  a 
verdict  for  plaintiff  for  $1,650  principal,  and  $25.70  interest,  upon  which  judg- 
ment was  rendered  against  the  defendant  for  sixteen  hundred  and  fifty  dol- 
lars principal,  and  twenty-five  dollars  and  seventy  cents  interest.  On  the 
17th  of  February  the  defendant  sued  out  a  writ  of  error.  On  the  9th  of  June 
following,  on  motion  of  counsel  for  the  plaintiff  below,  the  court  being  satis- 
fled,  as  stated  in  the  entry,  "from  an  inspection  of  the  verdict,  and  the  note 
upon  which  the  suit  was  instituted,  that  there  was  an  error  and  miscalculation 
in  this  that  the  said  verdict  and  judgment  in  said  cause,  instead  of  being  for 
sixteen  hundred  and  fifty  dollars  principal,  and  twenty-five  dollars  and  seventy 
cents  interest,  should  have  baen  for  seventeen  hundred  and  twenty-six  dollars 


'4-.]  MM  nrrn   AND    \v  r  <>K  .in- 

The  amendment  may  l>o  made  at  a  succeeding1  term  of  tin:  r«»urt.1 
after  the  intervention  of  a  term  or  terms  succeeding  the  one  at  which 
the  judgment  was  rendered.-  Where  a  judgment  was  entered  for  a 
lees  sum  than  was  shown  to  be  due  on  the  notes  sued  on,  it  was 
proper,  on  due  notice,  to  correct  the  error  after  the  end  of  the  term, 
and  after  an  appeal  was  perfected,  the  application  having  been  made 
before  the  appeal  was  perfected.'  An  amendment  of  a  judgment 
on  the  last  day  of  the  term,  but  which  is  of  a  character  auth»ri/.e-l 
l»y  statute  to  be  made  at  any  time,  is  not,  when  the  cast-  was  lir.-t 
submitted  for  determination  by  the  judge  on  the  law  and  the  facts 
more  than  three  days  before  the  close  of  the  term,  violative  of  rule 
•'•«'•.  for  the  government  of  district  courts,  which  requires  jitd.irments 
in  such  cases  to  be  entered  two  days  before  the  end  of  the  term.1 

The  remedy  by  an  amendment  of  the  judgment  as  allowed  by 
statute,  or  by  a  proceeding  in  the  nature  of  a  bill  of  review,  is  to 
correct  errors  of  fact;  as,  where  judgment  has  been  rendered  with- 
out service,  or  when  one  of  the  parties  was  dead,  etc.,  or  where  there 
is  a  mistake,  miscalculation,  or  misrecital  of  any  sum  of  money,  or 
of  any  name.  The  remedy  for  errors  of  law,  apparent  upon  the 

and  forty-nine  cents  principal,  and  one  hundred  and  one  dollars  and  twenty- 
seven  cents  interest,"  it  was  ordered  that  the  judgment  should  be  corrected  and 
rendered  for  the  latter  amount  It  is  said  that  the  error  in  amending  the  V..T- 
dict  and  judgment  by  the  note  and  other  papers  in  the  cause,  though  manitV-t, 
is  not  assigned  for  error,  and  therefore  is  not  subject  to  revision.  McL'onkey  v. 
Henderson,  24  T.  212.  The  court  has  no  power  to  change  the  verdict  of  a  jury 
so  as  to  make  it  conform  to  what  might  be  supposed  to  be  the  intention  of  the 
jury.  If  the  verdict  had  contained  the  basis  of  the  calculation  made  l>y  tin- 
jury,  or  had  afforded  data  by  which  their  intention  could  be  certainly 
tained,  the  mistake,  if  any,  in  their  calculation,  might  have  been  corrected,  and 
the  amendment  would  have  been  proper.  But  having  return*'.  1  a  v.-r.liet  for 
the  plaintiff  for  a  sum  certain,  after  it  had  been  received  and  recorded,  the  court 
had  no  power  over  it  to  change  it,  and  the  only  remedy  was  by  a  nc\v  trial. 
Messner  v.  Hutch  ins.  1?  T.  ~i97.  When  there  is  a  judgment  by  default,  the  error 
can  be  corrected  by  the  jpetition  and  not\.  McNairy  v.  Castleberry,  6  T.  ><'>: 
Swift  v.  Faris,  11  T.  ia 

•Swift  v.  Faris,  11  T.  18;  Ramsey  v.  McCauley,  9  T.  100. 

2  Russell  v.  Miller,  40  T.  495. 

»De  Hymel  v.  Mortgage  Co..  80  T.  493  (10  S.  W.  Rep.  311).    If  the  amount  of 
recovery  stated  in  figures  in  a  judgment  differs  from  that  stattd  in  writing, 
hut  the  recitals  in  the  judgment  itself  show  the  former  to  U>  the  true  amount. 
the  error  is  not  sufficient  cause  for  the  reversal  of  the  judgment.    Ca\  •• 
of  Houston,  63  T.  619. 

A  judgment  rendered  recited  its  date  June  14,  1874.  The  suit  was  instituted 
March  •,'!(,  1875.  The  judgment  also  recited  that  due  -  tat  ion  wa-  had 

upon  unknown  heirs  of  D.  S.    The  judgment  appeared  in  the  proceedings  of  the 
court  for  June  14,  1876.     It  was  manifestly  an  error  that  the  date  !»:  |  ap, 
in  the  judgment.     It  was  competent  to  read  the  entry  preceding  the  judgment 

tow  the   elerii-a!    mi-take   in   it.     Sloan  v.  Thorn)  App.  41'.' 

YV.  Rep.  613). 

.  Johnson,  69  T.  4-34  (6  S.  W.  Rep.  798). 


CGO  REMITTITUR   AND    AMENDMENT   OF   JUDGMENT.  [§  695. 

face  of  the  record,  is  by  appeal  or  writ  of  error.1  The  power  to 
amend  cannot  be  exercised  so  as  to  deprive  a  party  of  any  substan- 
tial rights  accruing  to  him  after  the  trial.2 

£  696.  Power  over  the  judgment  during  the  term. 

The  court  has  full  control  of  its  judgments  until  the  close  of  the 
term,  and  may  of  its  own  motion  set  aside  or  reform  the  same.3 
Until  the  adjournment  of  the  term  a  court  has  full  control  over  its 
judgments,  and  may,  upon  its  own  motion,  set  aside  or  reform  the 
same,  or  grant  a  new  trial,  according  to  the  justice  of  the  case,  upon 
the  merits  as  well  as  for  matters  of  form.4  But  the  court  cannot, 
after  a  judgment  has  been  rendered  on  the  verdict  of  a  jury,  substi- 
tute it  with  an  entirely  different  one  in  substance;5  especially  after 
the  close  of  the  term,  and  after  an  appeal  has  been  taken.6 

When  a  final  judgment  has  been  rendered  in  a  case,  and  the  term 
of  court  has  expired,  the  jurisdiction  of  the  court  over  the  subject- 
matter  of  litigation  is  gone,  and  it  has  no  power  to  set  aside  the 
judgment  and  hear  the  case  anew  for  the  purpose  of  correcting  er- 
rors committed  on  the  former  trial.  The  power  to  revise  and  cor- 
rect the  judgment  lies  only  in  the  appellate  courts.  After  it  has 
lost  jurisdiction  by  a  final  judgment,  the  power  of  a  court  to  correct 
its  records  does  not  cease,  but  may  be  exercised  even  when  the  case 
has  been  appealed.7  A  court  has  no  authority  to  set  aside  a  judg- 
ment of  a  former  term  and  render  a  second  judgment  in  the  cause. 
When  the  judgment  of  a  court  is  entered,  and  its  minutes  authenti- 
cated as  a  record  and  the  term  closed,  the  court  has  no  further 
power  over  the  judgment  for  the  purpose  of  revision  or  modifica- 
tion on  the  merits.8  But  the  power  to  alter  or  reform  continues 

1  Yturri  v.  McLeod,  26  T.  84;  Lewis  v.  San  Antonio,  26  T.  316;  Seguin  v.  Mav- 
erick, 24  T.  526. 

2  Russell  v.  Miller,  40  T.  495. 

3  Hooker  v.  Williamson,  60  T.  524    In  this  case  the  trial  was  by  the  court, 
and  the  judgment  was  properly  reformed,  on  motion,  by  increasing  the  amount 
of  the  recovery.    See,  also,  Barton  v.  American  Nat.  Bank,  8  Civ.  App.  223  (29 
8.  W.  Rep.  210);  Wood  v.  Wheeler,  7  T.  13. 

4  Mo.  Pac.  Ry.  Co.  v.  Houston  Flour  Mill  Co.,  2  App.  C.  C.,  §  572;  Bryorly  v. 
Clark,  48  T.  345.    The  perfecting  of  an  appeal  during  the  term  (R.  S.  1383,  1887) 
does  not  deprive  the  court  of  jurisdiction.    Blum  v.  Wettermark,  58  T.  125; 
Garza  v.  Baker,  58  T.  483. 

•  March  v.  Williams,  3  App.  C.  C.,  §  377. 

6  Smith  v.  Fox,  4  App.  C.  C.,  §  63. 

7  Imlay  v.  Brewster,  3  Civ.  App.  103  (22  S.  W.  Rep.  226). 

8Byars  v.  Justin,  2  App.  C.  C.,  §  688;  Chambers  v.  Hodges,  3  T.  517;  Trammell 
v.  Trammell,  25  T.  Sup.  261;  Gallagher  v.  Finlay,  2  App.  C.  C.,  §  623;  Browns- 
ville v.  Basse,  48  T.  441.  Where  the  citation  was  insufficient  to  support  a  judg- 
ment by  default,  the  court  had  no  po\ver  to  set  aside  the  judgment  at  a  subse- 
quent term  and  order  a  new  citation.  Brewster  v.  Norfleet,  22  S.  W.  Rep.  226. 

Where  an  appeal  has  been  perfected,  after  the  expiration  of  the  term  at  which 
the  judgment  was  rendered,  the  jurisdiction  of  the  appellate  court  attaches, 


§  695.]  REMITTITVB   AXD    AMENDMENT   OF   JUDGMENT. 

•hiring  the  term,  and  if,  after  judgment  against  several,  it  shall  ap- 
pear that  one  of  the  defendants  had  not  been  served  with  pr< 
and  that  as  to  him  jurisdiction  had  not  attached,  the  judgment  may 
be  reformed  so  as  to  relieve  him  from  its  operation,  and  continue 
in  force  against  the  othei*  defendants.  If  the  defendant  not  prop- 
erly before  the  court  is  a  partner  with  a  defendant  who  was  prop«-rly 
served,  and  the  suit  is  on  a  claim  due  from  the  partnership,  it  is 
proper  to  so  reform  the  judgment  as  to  exempt  from  individual 
liability  the  partner  not  served,  and  render  the  judgment  against, 
the  partnership,  and  the  members  thereof  individually  on  whom 
service  was  obtained.1 

Names  may  be  corrected;  so  it  is  proper  before  the  end  of  the 
term  to  permit  an  amendment  so  as  to  describe  correctly  the  part- 
nership against  which  the  judgment  was  rendered.2 

If  judgments  or  executions  are  defective  in  particulars  that  may 
affect  the  title  to  property  sold  under  them,  it  is  too  late  after  salt  s 
have  been  made  to  amend  either  so  as  to  have  the  effect  of  validat- 
ing such  sales.  It  would  be  inequitable  to  remove  defects  existing 
in  a  judgment  and  process  under  it  at  the  instance  of  a  purci 
after  a  sale  which  by  reason  of  such  defects  may  have  been  for  an 
inadequate  sum.  Where  proceedings  are  amended  it  should  be 
done  before  a  sale  has  been  made.  A  defect  in  substance  could  not 
be  supplied  after  sale  by  amendment  so  as  to  validate  such  sale.1 

and  the  lower  court  has  no  power  to  change  the  judgment  in  the  awarding  of 
cost*.  Gallagher  v.  Finlay,  3  App.  C.  C.,  §  62a 

1  Henderson  v.  Banks,  70  T.  398  (7  &  W.  Rep.  815).  An  order  granting  a  n.  \v 
trial  may  be  reconsidered  by  the  court  and  set  aside  during  the  term  without 
notice  to  the  party  in  whose  favor  the  order  was  made.  Nowlin  v.  Hughes,  3 
App.  C.  C.,  §  3ia  See,  also,  Seaton  v.  Brooking,  1  App.C.  C.,§  1041.  Such  onl.-r 
could  not  be  set  aside  after  the  close  of  the  term.  Puc!:ett  v.  Reed,  87  T.  308. 
By  consent,  the  court  after  judgment  may  reform  the  judgment  and  permit 
plaintiffs  to  dismiss  or  remit  judgment  against  one  or  more  of  several  dttVn<l- 
ants.  Jones  v.  Andrews,  73  T.  5  (9  a  W.  Rep,  170). 

*Sugg  v.  Thornton,  73  T.  666  (9  S.  W.  Rep,  143).  In  the  original  petition  plaint  • 
itf's  name  was  given  as  Brown;  in  the  amended  petition  it  was  changed  to 
Brow.  Judgment  was  entered  in  favor  of  Brown,  and  no  attempt  was  nwlf  t<> 
correct  it  in  the  lower  court.  It  was  held  that  the  correction  could  have  been 
made,  but  that  the  appellate  court  had  no  power  to  make  it.  Green  v.  Bro\\  n, 

.;  API,,  a  a,  ?•  lea 

Kay  v.  Bank,  75  T.  181  (12  a  W.  Rep.  529).  A  judgment  was  rendered  again>t 
11.  W.  Van  Hagen  (the  defendant's  name  being  Hiram  Watkins  Van  Hagen). 
An  alias  execution  was  issued  against  Win.  Van  Hagen.  Under  this  execution 
a  town  lot  was  seized  and  sold,  the  plaintiffs  in  execution  being  purchasers. 
Subsequent  to  the  sale  a  motion  was  filed  to  correct  the  execution  so  as  to  mak«> 
it  conform  to  the  judgment.  Without  notice  an  orderwaa  made  to  correct  tho 

•  i-.ii.  It  was  held  that  the  sale  of  Wm.  Van  Hagen's  interest,  or  the  sale 
under  the  execution  against  him.  <li«l  not  convey  the  title  of  H.  W.  Van  Hagen, 
ami  that  an  amendment  or  correction  of  the  execution  without  notice  to  •.!••- 


662  KEMITTITCK   AND   AMENDMENT   OF   JUDGMENT.  [§  696. 

It  is  undoubtedly  the  law  in  this  state  that  in  civil  matters  the 
courts  have  authority  to  set  aside  all  orders,  judgments  and  decrees 
of  the  term  when  made,  either  with  or  without  a  motion.  Having 
this  complete  authority  over  their  records,  the  setting  aside  of  judg- 
ments or  the  granting  of  new  trials,  whether  rightfully  or  not,  can- 
not estop  the  parties  from  again  litigating  the  question  involved, 
nor  could  the  action  of  the  court  in  an  appeal  be  held  to  be  error, 
as  no  judgment  can  be  appealed  from  unless  it  is  final.1 

§  696.  Release  of  errors. 

A  ran  iff  itur  or  correction  made  in  the  lower  court,  as  provided 
in  the  statute,  cures  an  error  in  the  verdict  or  judgment  by  reason 
of  an  excess.2 

fondant  Van  Hagen  was  a  nullity.  Such  correction,  even  if  made  upon  notice, 
would  not  validate  the  sale.  Morris  v.  Balkham,  75  T.  Ill  (12  S.  W.  Rep.  970). 

One  who  purchases  land  allotted  to  one  of  several  joint  owners  at  the  term  of 
court  when  a  decree  of  partition  is  entered  determining  the  interest  of  each 
owner,  and  after  the  entry  of  such  decree,  must  be  held  to  have  purchased  with 
notice  that  the  court  could  exercise  its  authority  to  alter  its  judgment  at  any 
time  during  the  term,  on  proper  notice.  If  the  vendor  had  no  notice  of  a  mo- 
tion to  revise  and  change  the  decree,  still  his  vendee  would  be  concluded  by  his 
subsequent  appearance  to  contest  the  motion  to  change  the  decree,  and  a  judg- 
ment changing  the  decree  wouM  be  conclusive  of  the  rights  of  the  purchaser 
to  the  extent  of  such  change,  and  could  not  be  disturbed  iu  a  collateral  proceed- 
ing. Sharp  v.  Elliott,  70  T.  666  (8  S.  W.  Rep.  488). 

i  Aycock  v.  Kimbrough,  71  T.  330  (12  S.  W.  Rep.  71). 

2R.S.  1359. 


CIIAITEU  XLVI. 


AGREEMENTS  OF  PARTIES. 


097.  In  general 

096.  Must  be  in  writing  or  entered  of 

recor.l. 


§  099.  Agreements  as  to  evidence. 
700.  May  be  set  aside. 


£  697.  In  general. 

Agreements  of  counsel  made  during  the  progress  of  a  cause  or- 
dinarily tend  to  the  dispatch  of  business,  and  are  favored  by  the 
courts.1  They  will  not  always  be  observed  by  the  court,  although 
they  may  IK.'  in  writing, and  are  not  to  be  treated  as  contracts  to  be 
enforced  under  all  circumstances.  Such  an  agreement  may  be  set 
aside  by  the  court,  in  the  exercise  of  a  sound  discretion,  when  its 
enforcement  would  ivsult  in  serious  injury  to  one  of  the  parties,  ami 
the  other  party  would  not  be  prejudiced  by  its  being  disregarded.-' 

An  agreement  waiving  any  misjoinder  of  parties  plaintiff,  and  of 
causes  of  action,  is  binding,  not  only  on  the  parties  thereto,  but  on 
those  who  may  purchase  from  the  defendants  pending  the  suit. 
Such  a  purdiaM-r  buys  the  suit  as  it  is, and  simply  takes  the  place  of 
his  vendor,  and  assumes  the  burdens  that  were  resting  upon  him. 
He  is  strictly  in  privity  with  his  vendor,  and  can  no  more  ignore 
his  agreements  with  reference  to  the  suit,  and  which  are  on  tile 
among  th»-  papers  of  the  cause,  than  could  the  administrator  ignore 
the  agreements  of  his  testator  made  with  reference  to  a  pending 
suit.* 

i  Porter  v.  If,  .It.  ::*  T.  447  ,11  &  W.  Rep.  494). 

-  M<-<  Mure  r«  siu-,-k.  us  T.  42R  (4  S.  W.  Rep.  552);  Cullers  v.  Platt,  81  T.  K 
S.  \V.  Ht-p.  HM:      II  in  ,..-k  v.  Wi nans,  20  T.  320.     An  agreement  made  by  one 

g  as  attorney  tor  a  minor  heir  to  enter  an  appearance  for  the  heir  in 
in  which  tlu-  ln-ir  is  sought  to  be  made  a  party  defendant  is,  as  to  such  heir,  a 
nullity.    HIISM-H  v.  Railway  Co.,  68  T.  646  (5  &  W.  Rep.  686).    A  bank  sued  on  two 
one  of  which  it  held  for  collection  and  the  other  as  collateral  security. 
i.akt-r  M-t  up  various  defenses  to  the  suit,  but  the  payee  was  not  a  party  to 
the  suit.     An  agreeim-iit  l>y  the  payee  for  a  continuance  was  li.  Id  nut  binding 
on  the  bank.     Ami. -rson  v.  ( 'iti/.ens'  Nat.  Bank.  5  S.  W.  Rep. 

A  waiver  of  not  ice  and  agreement  that  judgment  may  be  entered  at  a  - 
fied  term  will  U-  upheld,  though  the  petition  was  not  liled  at  the  time  the  agree- 
iut  nt   was  made.     Myers   v.   Brannon,  19  S.  W.  Rep.  1091.     An  agreement   by 
independent  executors  against  whom  suit  was  brought  to  waive  right  to  a 
or  writ  of  error   upon  the  plaintiff's  agreement  to  stay  e.\e<-uti<>n  and  order  of 

;i  the  judgment  obtained  will  bind  the  |iartirs.     .John-mi   v.  Halle\. 
A  pp.  W.  ll.-p.  T 

'Delk  v.  Pinifliard,  04  T.  360;  Punchard  v.  Delk,  55  T.  304.     In  an  agreement 


004  AGREEMENTS   OF   PARTIES.  [§§  698,  699. 

§  698.  Must  be  in  writing  or  entered  of  reoord. 

No  agreement  between  attorneys  or  parties  touching  any  suit 
pending  will  be  enforced,  unless  it  be  in  writing,  signed  and  filed 
with  the  papers  as  part  of  the  record,  or  unless  it  be  made  in  open 
court  and  entered  of  record.1  Although  the  court  is  not  required 
to  enforce  an  oral  agreement,  still  it  by  no  means  follows  that  the 
court  commits  any  error  of  which  a  party  to  such  agreement  can 
complain,  by  the  exercise  of  its  discretionary  powers,  so  as  to  pre- 
vent the  obtaining  of  an  unfair  advantage  by  the  violation  of  such 
agreement.2 

The  action  of  the  trial  judge,  after  hearing  statements  of  counsel 
for  parties  litigant  in  regard  to  a  parol  agreement  to  waive  filing 
of  title  deeds  and  notice  thereof,  in  enforcing  such  agreement,  con- 
stitutes no  ground  for  a  reversal  of  judgment.8 

§  699.  Agreements  as  to  the  evidence. 

Under  an  agreement  to  admit  all  evidence  that  would  throw 
light  on  the  transaction  in  suit,  it  is  not  error  to  permit  a  party  to 
prove  the  contents  of  a  written  instrument  without  accounting  for 
the  loss  of  such  instrument.4  An  agreement  to  admit  the  execution 
of  a  deed  and  waive  proof  of  the  same  admits  the  authority  of  the 
attorney  in  fact  who  executed  the  deed.5 

to  continue  a  suit  to  abide  the  result  of  another  suit,  it  was  agreed  that  judg- 
ment in  the  dependent  suit  should  go  according  to  the  recovery  in  the  suit  to  be 
tried,  and  it  was  held:  (1)  That  a  trial  of  the  test  case  on  the  merits,  and  not  a 
judgment  by  consent  or  a  plea  in  abatement,  was  intended.  (2)  That  the  right 
to  have  judgment  rendered  in  the  dependent  suit  resulted  from  the  fact  of  a  re- 
covery in  the  first  suit,  and  not  from  the  grounds  of  recovery  —  a  recovery  on  a 
plea  of  limitation  would  be  sufficient  (2)  The  right  to  have  judgment  rendered 
in  the  dependent  suit  could  be  enforced,  though  the  judgment  in  the  case  tried 
may  have  been  rendered  on  an  issue  not  common  to  both  suits.  Heirs  of  Wat- 
rous  v.  McKie,  54  T.  65. 

1  Rule  47. 

2  Williams  v.  Ruling,  43  T.  113;  Findley  v.  Love,  2  App.  C.  C.,  §  736. 

3  Jenkins  v.  Adams,  71  T.  1  (8  S.  W.  Rep.  603).     An  oral  agreement  of  counsel 
in  a  suit  made  and  acted  on  at  ona  term,  though  afterwards  written  in  a  state- 
ment of  facts  preparatory  to  perfecting  an  appeal,  cannot  be  used  on  a  second 
trial  as  evidence  to  establish  a  fact  confessed  by  it,  when  notice  of  its  with- 
drawal is  given  by  the  party  objecting  before  the  trial  begins.    Not  being  in 
writing  as  required  by  a  rule  of  court,  it  could  not  be  enforced.    Wootters  v. 
Kauffman,  67  T.  488  (3  S.  W.  Rep.  465). 

A  party  to  an  action  for  the  trial  of  the  right  of  property,  whose  attorney 
after  entering  an  appearance  had  abandoned  the  case  before  pleading,  received 
from  the  attorney  of  the  opposing  party  the  promise  that,  under  the  circum- 
stances, he  would  take  no  action  in  the  case  without  notifying  him.  He  was 
notified,  but  the  notice  was  so  short  that  he  could  not  reach  the  court-house  in 
time  to  pi-event  a  judgment  against  him.  It  was  held  that  the  judgment  by  de- 
fault should  have  been  set  aside,  and  this  though  it  was  taken  on  the  applica- 
tion of  the  partner  of  the  attorney  who  had  promised  to  give  notice.  Field  v. 
Fowler,  62  T.  65. 

4  Findley  v.  Love,  2  App.  C.  C.,  §  736, 
»Stripplemau  v,  Clark,  11  T.  296, 


§  70".]  AGKEEMEXTS    OF   PARTIES.  005 

An  agreement  waiving  notice  of  filing  title  papers,  and  of  show- 
inir  for  introducing  copies  by  showing  loss  of  originals,  dot- 
obviate  objections  to  deeds  not  duly  registered  or  otherwise  prop- 
erly prmv<l.1  The  statement  of  one  purpose  for  which  evidence 
may  be  offered  in  an  agreement  touching  a  case  pending  would  ex- 
clude evidence  offered  for  any  other  purpose.* 

An  agreement  that  "the  real  and  only  issue  is  one  of  boundary 
and  identification  of  plaintiff's  and  defendant's  real  estate"  eliin- 
•  the  question  of  limitation  brought  in  by  defendant.8 

?;  70O.  May  be  set  aside. 

The  setting  aside  of  agreements  is  within  the  sound  discretion  of 
the  court,  and  the  appellate  court  will  not  interfere  unless  it  is  ap- 
parent that  injury  has  resulted  to  the  party  complaining.  If  the 
observance  of  an  agreement  would  work  injustice  to  a  party  or 
inconvenience  the  court,  the  agreement  may  be  disregarded.4  An 
agreement  should  not  be  set  aside  at  the  instance  of  either  party 
when  the  one  invoking  action  has  obtained  an  advantage  under  it, 
or  when  its  withdrawal  would  place  the  opposite  party  in  a  worse 
position  than  if  it  had  never  been  made.  The  supreme  court  has 
never  treated  such  agreements  as  binding  contracts,  to  be  absolutely 
enforced,  but  as  mere  stipulations  which  may  be  set  aside  in  the 
sound  discretion  of  the  court  when  such  action  may  be  taken  with- 
out prejudice  to  either  party.5 

1  Robertson  v.  Du  Bose.  76  T.  1  (13  S.  W.  Rep.  300).  There  WAS  an  agreement 
in  this  car**.-  ••  that  the  patent  from  the  state  of  Texas  to  Caleb  Holloway,  herein 
filed,  is  common  source  of  title,  and  may  be  used  by  either  party  to  this  suit" 
This  did  not  preclude  the  defendant  from  proving  a  conveyance  to  his  vendor 
from  Holloway,  showing  his  (defendant's;  connection  with  that  title.  Any  evi- 
dence tending  to  show  who  owned  the  laud  held  by  that  patent,  and  by  a  right 
not  conflicting  with  it,  was  proper. 

-'  White  v.  McFarlin,  77  T.  596  (14  S.  W,  Rep.  200). 

'Gushing  v.  Smith,  12  S.  W.  Rep,  19,  In  a  suit  on  a  note  defendant  pleaded 
the  statute  of  limitations  as  to  the  interest  due  on  the  note.  By  an  agreement 
of  counsel,  in  consideration  of  a  continuance,  it  was  agreed  that  the  defendant 
••  waives  limitation  on  his  note  for  $828.50,  dated  February  1.  1878,"  etc.,  reserv- 
ing the  right  "to  contest  the  interest  in  whole  or  In  part  on  said  note."  This 
u ,i~  held  a  waiver  both  aa  to  principal  and  interest  Yaws  v.  Jones,  in  - 
Rep.  -U:J. 

Where  it  was  agreed  by  counsel  that  there  was  no  conflict  of  title  in  the  case, 
but  merely  a  question  of  boundary,  and  that  each  party  held  his  land  by  a  valid 
title,  but  it  was  also  agreed  that  either  party  might  plead  and  prow  the  laws 
of  limitation,  so  far  as  applicable  pnd  relevant,  there  was  no  error  in  receiving 
evidence  to  show  title  in  plaintiff  by  limitation.  Taylor  v.  Brown,  5  Civ.  A  pp. 
261. 

«  Hancock  v,  Winans.  20  T.  320, 

•  Porter  v.  Holt,  78  T.  447  (11  S,  W.  Rep.  494).    T'le  motion  to  set  aside  an  agree- 
ment m  this  case  showed  that  counsel  for  the  n:<>tion  through  a  mistake  hud 
yielded  up  a  defense  affecting  the  substance  of  the  litigation.    No  injury  t<>  tl  e 
-e  party  appearing,  the  action  of  the  court  refusing  to  set  aside  the  agree- 


666  AGREEMENTS   O*    PARTIES.  [§  T(  0. 

"When  a  written  agreement  is  made  and  filed  as  to  the  facts,  for 
the  purpose  of  facilitating  a  trial,  it  cannot  be  set  aside  and  disre- 
garded on  a  mere  motion  setting  up  a  mistake  in  its  execution,  and 
sustained  by  ex  parte  affidavits.  An  issue  should  be  made  up  and 
tried,  and  the  agreement  sustained  or  set  aside  in  accordance  with 
the  facts  found.1 

A  written  agreement  admitting  the  truth  of  certain  facts  and  dis- 
pensing with  the  necessity  of  proof  thereof,  entered  into  between 
the  parties  to  a  suit,  has  no  particular  sanctity  arising  from  the  fact 
that  it  was  made  in  the  course  of  a  judicial  proceeding.  It  is  still 
a  contract  that  may  be  set  aside,  if  entered  into  under  a  mistake  of 
fact;  and  the  proceeding  to  set  it  aside  is  summary,  and  is  addressed, 
in  a  large  measure,  to  the  discretion  of  the  trial  court.2  Where  an 
agreement  is  ambiguous,  and  the  parties  disagree  as  to  its  meaning, 
it  may  be  withdrawn  by  either  party  by  permission  of  the  court.3 

ment  was  error,  and  under  such  circumstances  a  ground  for  reversal.    See,  also, 
McClure  v.  Sheek,  68  T.  426  (4  S.  W.  Rep.  552). 

1  Morgan  v.  Davenport,  60  T.  230.     Motion  to  set  aside  an  agreement  made  by 
attorneys  was  supported  by  the  affidavit  of  the  party  making  the  motion.     It 
was  overruled.     The  record  did  not  show  that  the  motion  was  controverted  or 
demurred  to,  nor  that  any  testimony  was  introduced  upon  the  hearing.    The 
application  supported  by  the  ex  parte  affidavit  of  the  party  was  held  sufficient 
to  warrant  the  court  in  acting  upon  the  allegations  so  verified  without  further 
testimony.     Paschall  v.  Penry,  82  T.  673  (18  S.  W.  Rep.  154). 

2  Beaumont  Pasture  Co.  v.  Preston,  65  T.  44 

3Botts  v.  Martin,  44  T.  91.  Counsel  made  an  agreement  by  which  judgment 
of  foreclosure  should  be  entered  upon  a  vendor's  lien  note  sued  upon.  The 
plaintiff  was  an  indorsee  of  the  note  and  alleged  that  he  was  a  bonafide  holder 
before  maturity.  After  the  agreement  defendant  ascertained  the  fact  that 
plaintiff  held  the  note  for  the  original  payee.  Application  was  at  once  made  to 
s?t  aside  the  agreement  and  permit  defense  to  be  filed,  the  facts  showing  a  fail- 
ure in  the  title  to  one-half  the  land,  etc..  and  it  was  held  error  to  refuse  to  set 
aside  the  agreement  and  allow  the  defense  upon  the  merits.  Paschall  v.  Penry, 
82  T.  673  (18  S.  W.  Rep.  154). 


CHAPTER  XLVII. 


OF  TRIAL  BY  AN  AUDITOR. 


701.  Auditor  appointed,  when. 

ice  of  the  hearing. 
Manner  of  conducting  the  trial. 


§  704  Forms  of  proceeding  and  rules 
of  evidence. 

705.  Report  of  auditor. 

706.  Report  in  evidence;  exceptions. 


£  701.  Auditor  appointed,  when. 

Whenever,  in  any  su't,  it  appears  that  an  investigation  of  ac- 
counts or  examination  of  vouchers  is  necessary  for  the  purposes  of 
justice  between  the  parties,  the  court  "shall  appoint  an  auditor  or 
auditors  to  state  the  accounts  between  the  parties  and  to  make  re- 
port thereof  to  the  court  as  soon  as  may  be.  The  court  allows  a 
liable  compensation  to  the  auditor,  which  is  taxed  in  the  bill 
sts.1 

The  appointment  of  an  auditor  is  so  entirely  within  the  discretion 
of  the  trial  court  that  a  refusal  to  make  an  appointment  would 
only  1*?  revised  on  appeal,  if  at  all,  when  a  gross  abuse  of  discre- 
tion is  shown.-  The  power  to  appoint  auditors  is  expressly  iriven 
Ity  statute,  without  limitation  as  to  the  character  of  suits,  when  the 
investigation  of  accounts  or  examination  of  vouchers  becomes  nec- 
•  •-.sary.*  An  auditor  should  be  appointed  in  a  suit  involving  un- 
usual matters  of  account,  if  prayed  for.4  But  it  is  held  that  the 
statute  leaves  the  appointment  and  the  action  under  it  entirely 
in  the  disci  rtion  of  the  court.  Where  the  trial  court,  for  reasons 
satisfactory  to  itself,  rejects  the  report  of  an  auditor,  and  sub- 
mits the  whole  case  to  a  jury  under  proper  instructions,  the  ap- 

1R.  S.  HIM.  1497. 

-  H..  K.  \  W.  T.  Ry.  Co.  v.  Snelling,  59  T.  116. 

-ht  v.  1'ate.  i  a  W.  Rep.  661. 

*  Whitaker  v.  Bledsoe,  34  T.  401:  Bailey  v.  Knight,  4  App.  C.  C.,  g  275;  Rogers 

v.  Nichols.  •„'(>  T.  7 lit.     In  a  suit  to  recover   upon  an  account   stated.  : 

it y  foi  the  appointment  of  an  auditor:  l»ut  tin-  action  of  the  court  will 
not  be  i.-\i--d  \\\\< iv  tli'-  rights  of  appellant  are  not  affected.  I»mis  v.  Stuart. 
A  .  Hep.  ln>.  When  tlu-  suit  involves  a  settlement  of  mercantile  account*- 
running  through  a  long  jK-riod  of  time,  and  the  transactions  of  a  nu  rcantili- 
business  conducted  first  I iy  tin-  t'-tator  an<l  tln-n  \>y  liis  executor,  against  \\hos.- 
t-tat.-  a  n-cov.-ry  issou-ht.  for  an  alleged  maladministration  of  tlu-  asset-,,  the 
ap|M>intment  of  an  auditor  is  not  only  proper  but  necessary.  The  duties  of  th«- 
auditor,  wli.-n  ai>|x>inted.  should  as  in-arly  as  (xissible  bt.>  contined  to  a  statement 
of  the  account,  and  as  far  as  practicable  ili^Mi;---!  i|ii."-tions  of  fact  should  not 
be  referred  to  him.  Dwyer  v.  Kalt  y-  r.  r,-  T.  :,-,j  ,:,  s.  \V.  liep.  73). 


668  "  TRIAL   BY    AN   AUDITOK.  [§§  702-704. 

pellate  court  will  not  revise  its  action  in  excluding  the  report,  such 
action  being  no  more  than  the  concession  of  the  right  of  trial  by 
jury.1 

§  702.  Notice  of  the  hearing. 

One  or  more  auditors  may  be  appointed,  who  should  proceed  to 
hear  the  cause  before  the  next  succeeding  term  of  the  court.  The 
auditor  should  appoint  the  day  and  place  for  the  parties  to  attend 
him  on  the  matter  of  the  reference,  by  a  memorandum  in  writing 
signed  by  him.2  It  is  the  duty  of  the  party  obtaining  the  reference, 
or  of  the  plaintiff,  when  the  reference  is  made  by  the  court  without 
motion,  to  obtain  from  the  auditor  the  order,  and  serve  it  upon  the 
opposite  party  or  his  attorney,  a  reasonable  time  before  the  day 
designated  for  the  hearing.  In  the  absence  of  any  rule  of  court,  it 
seems  the  statutory  rule  for  the  service  of  an  ordinary  citation 
might  be  adopted.3 

»  §  7O3.  Manner  of  conducting  the  trial, 

At  the  time  and  place  designated  in  the  order,  the  auditor  may 
proceed  with  the  reference ;  if  either  party  fails  to  attend,  he  may 
proceed  in  his  absence,  upon  an  affidavit  being  filed  that  the  notice 
has  been  duly  served.4  He  may  postpone  the  hearing  upon  the 
application  of  either  party  for  good  cause  shown,5  and  may  also 
adjourn  from  day  to  day,  until  the  matter  is  finally  disposed  of.6 
If  more  than  one  auditor  is  appointed,  a  majority  must  be  present 
at  the  hearing,  and  can  unite  in  making  report;  but  it  must  appear 
that  sufficient  notice  has  been  given  of  the  meeting  to  those  who 
failed  to  attend.7 

§  704.  Forms  of  proceeding  and  rules  of  evidence. 
The  same  forms  of  proceeding  are  to  be  pursued,  and  the  same 
rules  of  evidence  are  to  be  observed,  on  the  hearing  of  a  cause  be- 

1  Robson  v.  Jones,  33  T.  324,  An  application  for  an  auditor  is  properly  refused, 
when  made  after  the  trial  has  commenced,  and  after  the  suit  has  been  pending 
over  two  years,  and  where  it  is  unsupported  by  any  answer  or  evidence  show- 
ing the  necessity  therefor,  Hunt  v.  Reilly,  50  T.  99.  The  question  of  how  much 
of  an  estate  is  community  property  seems  not  to  be  a  proper  one  for  an  auditor. 
Ellison  v.  Keese,  25  T.  Sup.  83. 

The  appointment  of  an  auditor,  by  the  consent  of  the  defendant,  does  not 
have  the  effect  of  an  admission  of  the  cause  of  action  to  any  extent;  it  does  not 
estop  defendant  from  establishing  his  defense,  or  relieve  the  plaintiff  from  the 
necessity  of  establishing  his  cause  of  action,  Hughes  v.  Christy,  26  T,  230. 

22Dan.Ch.  Pr.  1352. 

3  Parsons  v.  Able,  19  T.  447. 

*2  Dan.  Ch.  Pr.  1354;  Parsons  v.  Able,  19  T.  447. 

5  Forbes  v.  Frary,  2  John,  Cas,  224;  Cleaveland  v,  Hunter,  1  Wend,  104, 

6  2  Dan.  Ch.  Pr.  1354. 

7  Kyd  on  Awards,  106, 


5.]  TRIAL   BY    AN    AUDITOR.  669 

an  auditor,  as  on  a  trial  before  a  jury.1  Objections  to  the 
julmissibility  of  evidence  are  taken  in  the  same  manner;  and  a 
failure  to  except  to  the  ruling  of  the  auditor,  at  the  proper  time, 
will  have  the  same  effect  as  on  a  trial  before  a  jury.2  No  author- 
ity is  given  by  the  statute  to  the  auditor  to  compel  the  attendance 
of  witnesses;  but,  as  the  power  to  examine  witnesses  is  incidental 
to  his  duties,  it  seems  that  his  authority  would  be  co-extensive  with 
that  of  a  commissioner  to  take  testimony,  and  he  may  therefore 
issue  a  subpoena  for  a  witness,  and  compel  him  to  attend  and  testify, 
in  like  manner  as  the  district  court  can  do.3 

§  705.  Report  of  auditor. 

The  report  of  the  auditor  must  be  verified  by  his  affidavit,  stat- 
ing that  he  has  examined  carefully  the  state  of  the  account  between 
the  parties,  and  that  his  report  contains  a  true  statement  thereof, 
so  far  as  the  same  has  come  to  bis  knowledge.4  Where  the  matter 
submitted  to  an  auditor  embraces  the  accounts  of  both  plaintiff  and 
defendant  as  set  forth  in  the  pleadings,  it  is  his  duty  to  endeavor  to 
arrive  at  a  just  solution  and  to  report  his  conclusions  to  the  court. 
In  doing  this  he  must  hear  and  determine  the  evidence  as  a  jury 
would.  If  a  dispute  arises  as  to  the  law  applicable  to  any  partic- 
ular, and  he  has  not  been  instructed  by  the  court  upon  it,  it  is  not 
improper  for  him  to  state  what  he  supposes  the  law  to  be  and  his 
conclusion  of  fact  upon  the  hypothesis  that  his  opinion  of  the  law 
is  correct.  If  correct,  his  findings  of  fact  are  conclusive,  if  not  ex- 
cepted  to;  but  if  not  correct,  they  should  be  disregarded  by  the 
court.5  It  is  not  necessary  for  the  auditor  to  take  down  and  report 
the  evidence  on  which  his  conclusions  are  founded.6 

The  report  should  contain  a  statement  of  the  several  items  of 
debt  and  credit  allowed,  and  not  merely  the  total  sums;  but  where 
no  objection  is  made  on  this  ground,  and  the  report  is  good  against 
the  exceptions  that  are  urged,  it  is  conclusive  of  the  matters  within 
its  scope,  and  renders  immaterial  alleged  errors  in  admitting  and 
rejecting  evidence  bearing  on  these  matters.7  A  report  with  refer- 
ence to  matters  not  properly  arising  under  the  pleadings  of  the 
parties  should  to  that  extent  be  excluded  from  the  consideration 
of  the  jury.8 

1  Evesy  v.  Merwin,  8  Cow.  860. 

2  Copeland  v.  Crane, »  Pick.  73 {  Byington  v.  Wood,  1  Paige,  45;  Lewis  v.  Lewis, 
1  Ala 

»  R  S.  2282,  2283, 

« R  S.  149--). 

»  Richie  v.  Levy.  69  T.  133  (6  S.  W.  Rep.  685), 

6  Whitehead  v.  Perie,  15  T.  ?:  Richie  v.  Levy,  69  T.  133  (6  S,  W.  Rep,  685), 

•Cameron  v.  Bank,  4  Civ.  App.  309  (28  a  W.  Rep,  834> 

'Barkley  v.  Tarrant  County,  53  T,  251. 


C70  TRIAL   BY   AN    AUDITOR.  [§   TOrt. 

The  account  made  up  by  the  auditor  should  be  so  reported  that 
the  undisputed  items  on  either  side  may  be  eliminated  from  the 
case,  and  the  issue  thereby  narrowed  to  the  items  actually  in  dis- 
pute.1 It  seems  to  be  the  duty  of  the  auditor  to  state  the  items  of 
the  account;  and  for  a  failure  to  do  so  the  report  may  be  set  aside 
on  motion.2 

§  706.  Report  in  evidence;  exceptions. 

The  report  of  the  auditor  may  be  admitted  in  evidence,  but  may 
be  contradicted  by  evidence  from  either  party,  where  exceptions 
to  such  report,  or  any  items  thereof,  shall  have  been  filed  before 
the  trial.1 

"Where  the  report  does  not  conform  to  the  law,  in  form  or  sub- 
stance, and  the  objection  is  apparent  on  inspection  of  the  report 
itself,  the  party  aggrieved  should  move  to  set  it  aside;  if  regular 
and  in  due  form,  the  party  wishing  to  impeach  its  accuracy  should 
except,  specifically  setting  forth  wherein  the  inaccuracy  consists; 
and  to  the  matters  thus  excepted  to  the  parties  should  be  required 
to  confine  then-  evidence  on  the  trial.4  The  party  who  desires  to 
contest  an  item  must  do  so  by  specific  exceptions,  filed  in  time,  to 
the  item  of  debt  or  credit  which  he  claims  has  been  incorrectly  in- 
cluded or  excluded  from  the  amount  as  reported,  or  which  he  claims 
to  be  incorrect  as  to  amount.5  The  report  is  conclusive  only  as  to 
the  items  not  excepted  to.  It  eliminates  from  the  contest  the  un- 
disputed items  on  either  side,  and  narrows  the  issue  to  a  point  act- 
ually in  dispute.'  Objections  and  exceptions  to  the  correctness  of 
items  serve  the  purpose  of  admitting  evidence  to  contradict  the  re- 

»Kempner  v.  Galveston  Co.,  76  T.  450  (13  S.  W.  Rep.  460;  Dwyer  v.  Kalteyer, 
68  T.  554  (5  S.  W.  Rep.  75).  Suit  was  brought  for  a  balance  due  for  running  a 
hotel,  and  for  refusal  to  renew  the  lease.  The  accounts  were  referred  to  an 
auditor,  who  made  a  report  The  report  was  unchallenged  by  objection  from 
either  party.  It  was  not  addressed  to  the  court,  and  did  not  appear  to  be  a 
formal  report,  but  it  did  show  a  statement  of  the  receipts  and  disbursements  of 
the  hotel,  and  a  balance  against  receipts,  and  had  the  file-mark  of  the  clerk  of 
the  court,  and  was  identified  as  the  auditor's  report  It  was  held  conclusive 
not  only  as  to  matters  included  therein,  but  also  to  such  as  had  been  excluded, 
and  it  was  error  to  submit  the  account  between  the  parties  to  the  jury.  The 
report  having  been  admitted  in  evidence,  and  plaintiff's  pleadings  not  showing 
that  any  mistake  had  been  made  in  it,  and  setting  up  no  items  independent  of 
the  report,  it  was  error  to  permit  a  witness  to  testify  that  he  had  examined 
memoranda  furnished  by  plaintiffs,  and  that  defendant  owed  them  the  several 
sums  stated  thereia  Aransas  Pass  Land  Co.  v.  Hanaford,  4  Civ.  App.  286  (23  S. 
W.  Rep.  566). 

2  Whitehead  v.  Perie,  15  T.  7. 

3  R.  a  1496. 

*  Whitehead  v.  Perie,  15  T.  7. 
5  Richie  v.  Levy,  69  T.  133  (6  S.  W.  Rep.  68-:). 

«Bupp  v.  O'Connor,  1  Civ.  App.  328  (21  S.  W.  Rep.  619);  Kempner  v.  Galves- 
ton Co.,  76  T.  450  (13  S.  W.  Rep.  4GO);  Whitehead  v.  Perie,  15  T.  7. 


'">.]  '    TEIAL   BY    AN    AUDITOR.  •'•71 


port  in  those  ]>articulars;  they  need  not  be  treated  as  ple 
and  read  as  such  on  the  presentation  of  the  case.1 

A  party  has  the  right  to  object  specifically  to  any  item  allowed 
<>r  disallowed,  or  to  any  conclusion  arrived  at  by  the  auditor,  and 
have  the  verdict  of  a  jury  thereon  in  response  to  evidence  adduced 
on  the  trial  of  the  case.  In  the  absence  of  such  objections  it  is  not 
error  for  the  court  to  charge  that  the  report  is  conclusive,  nor  does 
such  practice  contravene  the  right  of  the  party  to  a  trial  by  jury.2 
When  there  are  no  valid  objections,  the  report,  or  so  much  thereof 
sustained  on  exception,  is  admitted  in  evidence  against  objec- 
tions made  by  a  party.* 

•  Kendall  v.  Hackworth,  88  T.  499  (18  a  W.  Rep.  104).  On  the  coming  in  of 
an  auditor's  report,  the  defendant  gave  plaintiff  notice  to  the  effect  that  he 
would,  on  the  trial,  offer  evidence  to  attack  and  defeat  so  many  items  of  the 
report  as  were  allowed  in  favor  of  plaintiff,  and  so  much  of  the  same  as  «li<al- 
lowed  certain  items  claimed  by  defendants,  specifying  their  several  amounts. 
Tin-  notice  should,  on  exceptions,  have  been  held,defective  as  being  too  general 
in  its  terms,  Barkley  v.  Tarrant  Co.,  53  T.  251.  Where  exceptions  are  referred 
to  and  contained  in  an  answer,  they  will  not  be  deemed  waived  because  not  re- 
ferred to  in  an  amended  answer.  Kendall  v.  Hackworth,  68  T.  499  (18  S.  \V. 
Rep.  104). 

1  Boggs  v.  State,  46  T.  10.  On  the  question  as  to  the  right  of  trial  by  jury,  see 
Robson  v.  Jones,  83  T.  324. 

»  Richie  v.  Levy,  69  T.  133  (6  a  W.  Rep.  685):  Whitehead  v.  Perie,  15  T.  7. 


CHAPTER  XLYIII. 

OF  NOTICES  AND  MOTIONS. 


707.  Form  of  notice. 

708.  Service  of  notice. 

709.  Motions;  defined. 


§  710.  Motion  docket;    filing  motions. 

711.  Notice  of  motions. 

712.  Motions  disposed  of,  when. 


%  707.  Form  of  notice. 

A  notice,  whenever  necessary  in  the  progress  of  a  suit,  must  be 
in  writing,  properly  entitled  of  the  cause,  and  signed  by  the  party 
or  his  attorney.  Its  statements  should  be  sufficiently  full  and  ex- 
plicit to  apprise  the  party  of  its  object  so  that  he  cannot  be  misled. 

§  708.  Service  of  notice. 

Whenever  in  the  commencement  or  progress  of  any  suit  it  shall 
be  necessary  to  serve  any  notice  on  any  party  to  the  suit,  it  may 
be  served  either  by  an  officer  authorized  by  law  to  serve  original 
process  of  the  court  in  which  suit  is  brought  or  may  be  pending,  or 
by  any  person  who  would  be  a  competent  witness  upon  the  trial  of 
the  suit.  It  may  be  served  in  like  manner  as  an  original  writ, 
either  on  the  party  or  his  attorney  of  record;  and  the  return  of 
such  notice,  when  made  by  an  officer,  or  when  made  by  any  other 
person,  and  verified  by  the  affidavit  of  such  person,  is  received  as 
evidence  of  the  fact  of  service,  subject  to  be  repelled  by  contrary 
proof.1 

Where  the  law  requires  a  written  notice,  and  the  manner  of  serv- 
ice is  not  prescribed,  the  original  or  a  copy  thereof  must  be  deliv- 
ered to  the  person  to  be  notified.2  Where  notice  is  to  be  given  to 
a  corporation  the  statute  regulating  the  service  of  citations  may  be 
referred  to,  for  the  purpose  of  determining  the  officer  on  whom 
service  ought  to  be  made.3  Notice  of  taking  depositions  may  be 
served  upon  the  local  agent  of  a  corporation.4 

J  R.  S.  1457. 

2  Reagan  v.  Wooten,  4  App.  C.  C.,  §  133.  Parties  must  take  notice  of  proceed- 
ings in  court,  and  the  orders  and  judgments  of  the  court  being  under  its  con- 
trol to  the  end  of  the  term,  it  is  competent  for  the  court  to  set  aside  an  order 
granting  a  new  trial  and  enter  an  order  refusing  it  without  notice  to  the  party 
filing  the  motion.  Nowlin  v.  Hughes,  2  App,  C.  C.,  §813.  And  see  Thompson 
v.  Alford,  20  T.  491. 

8  McCreary  v.  Waco  Lodge,  2  U.  C.  675.  It  is  held  in  this  case  that,  for  the 
purpose  of  fixing  a  mechanic's  lien,  service  on  the  chairman  of  a  building  com- 
mittee of  an  Odd  Fellows  lodge  was  insufficient,  the  person  served  having  no 
power  except  as  chairman. 

4  Mo.  Pae.  R.  Co.  v.  Collier,  62  T.  318. 


.  1U.J  -     AM>    V-  'll'iNS.  673 


of  amendments  of  a  return  of  process  may  be  served  by 
any  person  who  may  be  a  competent  witness.1  Notice  of  a  sum- 
mary proceeding  against  a  sheriff  and  his  sureties  may  be  served 
by  an  officer,  or  by  a  private  person  who  makes  affidavit  of  the 
•ervi 

09.  Motions  defined. 

A  motion  is  an  occasional  application  to  the  court  by  the  parties, 
in  onlrr  to  obtain  some  rule  or  order  of  the  court,  which  becomes 
necessary  in  the  progress  of  a  cause,  or  to  obtain  some  relief  to 
which  a  party  is  entitled,  without  the  necessity  of  instituting  suit 
tberefor.  Motions  may  relate  to  suits  pending,  or  may  not  be  con- 
nected with  any  suit.* 

A  motion  of  an  attorney,  as  the  friend  of  the  court,  cannot  be 
•  I  as  the  exception  of  the  parties;  the  court  may  do  only  what, 
if  properly  informed,  it  would  do  without  such  motion.4 

?  710.  Motion  docket;  filing  motions. 

The  clerk  is  required  to  keep  a  motion  docket,  in  which  he  shall 
enter  every  motion  filed  in  his  court,  the  number  of  the  suit  in 
which  it  is  made,  if  it  relates  to  a  suit  pending,  the  names  of  the 
parties  and  their  attorneys,  with  a  brief  statement  of  the  nature  of 
the  motion.5  Rule  21  requires  that  the  date  of  tiling  and  its  num- 
ber be  entered  in  the  docket. 

Either  party  may  require  that  notice  of  objections  to  the  form 
<n-  manner  of  taking  and  returning  depositions  shall  be  placed  upon 
the  motion  docket.6  Motions  must  be  in  writing,7  and  it  is  the 
duty  of  the  clerk,  upon  filing  a  motion,  to  enter  the  same  at  once 
upon  the  motion  docket.  A  failure  to  so  enter  a  motion  for  a  new- 
trial,  filed  within  two  days  after  the  trial,  will  not  be  allowed  to 
work  an  injury  to  the  party  filing  the  same.  A  motion  handed  to 
the  clerk  and  by  him  indorsed  filed,  with  his  official  signatu 
properly  tiled,  although  the  clerk  is  not  in  his  office  at  the  time. 
The  clerk  should  not  permit  a  motion  to  go  out  of  his  possession 
until  it  is  properly  entered  in  the  docket.8 

1  Thomson  v.  Bishop.  29  T.  1 

-  Hal.-y  v.  (in-.-nu,,,,,].  •>  T.  680. 
>R  160. 

Moseby  v.  Burrow,  52  T.  896;  State  v.  Jefferson 

Iron  Co.,  60  T.  812;  Jones  v.  City  ..f  J,  ilVr-.n,  60  T.  576  (1  a  W.  Rep.  903). 
*Rs  ik-  -Jl.    See  Rule  79. 

*Rul 

iM'.n  v.  Jones.  4  T.  17<>. 

*  Hammock  v.  May.  :^  T.  196.    A  paper  is  considered  filed  when  the  clerk  has 

ti  the  day  on  which  it  was  filed,  ami  signed  his  name  officially 
thereto.  R.  S.  14  in.  An  objt-ctii.ii  t<>  a  paper  for  want  of  a  file-mark,  which 
has  obviously  been  placed  in  the  cu»to.lv  of  the  clerk  and  acted  upon  by  the 


674  NOTICES    AND   MOTIONS.  [§  711. 

§  711.  Notice  of  motioup. 

Notice  of  motions  in  a  suit  pending  is  given  by  the  filing  of  the 
motion  and  entry  thereof  in  the  motion  docket  during  the  term.1 
"Where  a  motion  does  not  relate  to  a  pending  suit,  and  where  the 
time  of  service  is  not  elsewhere  prescribed,  the  adverse  party  is 
entitled  to  three  days'  notice  of  the  motion.2  Rule  21  provides  for 
an  entry  of  all  motions  in  the  motion  docket  when  filed,  "  which 
filing:  shall  be  considered  notice  of  said  motion  before  the  continu- 

O 

ance  or  final  disposition  of  the  case  for  the  term,  except  where  it  is- 
otherwise  provided  by  statute." 

Notice  must  be  given  of  a  motion  to  enter  judgment  nunc  pro- 
fane? or  to  amend  a  judgment  after  the  term.4 

Notice  of  proceedings  against  any  attorney  for  fraudulent  or  dis- 
honorable conduct,  or  malpractice,  or  contempt,  or  for  failure  to 
pay  over  money  collected,  must  be  served  at  least  five  days  before 
the  trial  day.5  An  officer  selling  property  otherwise  than  as  au- 
thorized by  law,  or  failing  to  pay  over  money  collected  on  execu- 
tion, or  who  fails  or  refuses  to  levy  upon  and  sell  property  justly 
liable  to  execution,  or  to  return  an  execution  as  required  by  law,  or 
any  person  who  shall  bid  off  property  at  execution  sale,  and  fail  to 
comply  with  the  terms  of  the  sale,  may  be  proceeded  against  by 
motion  on  five  days'  previous  notice  being  given.6  Three  days'  no- 
tice of  a  motion  to  substitute  lost  records  and  papers  is  required.7 
Ten  days'  notice  must  be  given  of  a  motion  to  dissolve  an  injunc- 
tion.8 

court,  comes  too  late  when  urged  for  the  first  in  the  appellate  court  (Knight 
v.  Holloman,  6  T.  153;  Holnian  v.  Chevaillier,  14  T.  337;  Turner  v.  State,  41  T, 
549),  and  it  is  held  that  courts  take  judicial  notice  of  the  pleadings  in  a  cause, 
and  are  supposed  to  know  the  signatures  of  their  clerks.  Eggenberger  v.  Bran- 
denberger,  74  T.  274  (11  S.  W.  Rep.  1099),  citing  Whart.  Ev.,  §  325,  and  Buell  v. 
State,  72  Ind.  523. 

iR  S.  1458. 

2  R  8.  1460. 

aCowart  v.  Oram,  1  App.  C.  C.,  §  184;  R  S.  1356. 

*  Byars  v.  Justin,  2  App.  C.  C.,  §  687. 

6R'S.  266,  269. 

«  R  S.  2379,  2381,  2385,  2386,  2387. 

•RS.  1498. 

8R  S.  3007.  Motions  to  strike  out  pleas  which  have  been  filed  out  of  due 
order,  or  amendments  filed  without  leave,  motions  for  new  trial,  in  arrest  of 
judgment,  or  for  a  judgment  non  obstante  veredicto,  etc.,  have  relation  to  the 
progress  of  the  cause,  of  which  it  would  seem  that  the  opposite  party  is  bound- 
to  take  notice.  In  Clute  v.  Ewing,  21  T.  677,  a  reference  of  the  cause  had  been 
made  to  arbitrators;  at  a  subsequent  term  they  reported  and  referred  the  cuse 
back  upon  the  ground  that  the  parties  had  not  agreed  upon  the  terms  of  the 
arbitration,  and  the  plaintiff  filed  a  motion  to  discharge  the  reference.  There 
having  been  a  verdict  and  a  judgment  in  favor  of  the  plaintiff,  the  defendant 
not  having  been  present  at  the  trial,  a  motion  for  a  new  trial  was  made,  and  one 
of  the  grounds  assigned  therefor  was  that  the  defendant  was  not  served  with 
notice  of  the  motion  to  discharge  the  reference  to  arbitrators.  The  court  say 


N-  «;,."> 

provides  that   on  motion  to  correct  a  misrecital  in  a 
judiriM'-Mt  reasonable  notice  shall  be  given,1  and  it  is  held  that  four 

'Mcieut.-' 

:!.  Motions  disposed  of,  when. 

All  motion.-  relating  to  a  suit  pending,  which  do  not  go  to  the 
.  may  be  dispo-.-d  of  at  any  time  before  the  trial 
of  th  All  motions  not  relating  to  a  suit  pending  must  be 

D  up  and  disposed  of  in  their  order  the  same  as  other  suits.4 
The  ral.-s  provide  that  "the  court  will  set  apart  a  particular  day 
each  week  of  the  term  when  motions  previously  made,  in  which 
proper  notice  has  been  given,  shall  be  determined,  if  urired.  unless 
•oil  cau-e  tin-van-  postponed  to  a  day  during  the  term,  or  con- 
tinued by  consent  to  the  next  term."  '  Notice  of  objections  to  the 
form  or  manner  of  taking  and  returning  depositions  must  be  de- 
cided before  either  party  shall  be  required  to  announce  readiness 
for  trial  on  th.-  facts."  The  statute  provides  that  such  notice  must 
be  in  \vriting,  and  that  notice  must  be  given  to  the  opposite  party 
before  the  trial  commences;7  when  such  notice  is  given,  the  motion 
to  suppress  may  be  heard  during  the  progress  of  the  trial.8 

the  motion  in  this  case  had  relation  to  the  mode  of  trial,  and  the  defendant, 

knowing  that  the  parties  had  failed  to  agree  upon  the  terms  of  arbitration,  should 

have  expected  and  looked  for  such  a  motion,  unless  he  knew  that  the  suit  against 

him  had  been  abandoned,  of  which  there  is  no  pretense.  This  motion  is  entirely 

unlike  that  in  the  case  of  Houston  v.  Sublett.  1  T.  ."»23,  relied  on  to  show  that 

thereof  should  have  been  served  on  him.   The  motion  in  this  case,  having 

n  to  the  further  progress  of  the  cause,  should  have  been  expected,  and 

"t.  under  all  tlit-  circumstances,  calculated  to  take  him  or  his  attorneys 

In   Hi.u-t«iu   \.  SuMett,  1  T.  -VJ:;.  it  was  said  that  where  there  is  a 

rule  to  pay  i-M-t-.  tli-  i.   mu-t. as  a  general  rule,  be  notice  to  the  party  upon  whom 

rate,  in  order  to  attach  the  consequences  of  a  failure  to  perform  the 

But  in  thi-  <-a-.-  tin-  motion  was  made  after  the  continuance  of,  the  cause 

fur  the  term.     In  Holshauseii   v.  Hollin^s\v.>rtli.  '•'>''  T.  M'I.  tin.-  ruling  in  II 

v.  Sublet  is  approved,  but  the  question  was  not  involved  in  the 

»K.  S.  1: 

'Coffee  v.  Black,  50  T.  117. 

»R  -  in  y  an-  to  l.e  tried  at  the  first  U-rm  to  which  the  attention  of 

•  art  -hall  U«  railed  to  them,  unless  passed  by  agreement  of  parti.-*  with 

the  consent  of  the  court:  they  mu.-t  l>e  railed  and  disj>osed  of  before  the  mam 

issue  on  the  merits  is  tried.     Rule  '-'4.     Motions  relating  to  the  merits  mu-t  U> 

I  at  the  first  ti-rm  of  the  court  when  the  case  is  called  in  the  re^ulai 
i'or  trial  on  the  docket,  if  reached,  whether  there  be  an  announcement  on  the 
Mr  not.  unl'-.-s  passed  by  agreement  of  parties  with  the  consent  of  the 
court.     KiiK   -'"'.     'I.. tii >n>  not  disposed  of  before  trial  on  the  merits  are  cli 
waiv.-d.     Krwin  v.  Citv  of  Au-tin,  1  App.  (J.  C.,  §  1037. 
KJ1. 

Miu. 
•Bol 

•  R.  S.  -,>289. 

» Col. man  v.  Colgate,  69  T.  88  (8  S.  W.  Rep.  553);  So.  Pac,  Ry.  Co.  v.  Ro;\ 
S.  W.  Rep.  316. 


CHAPTER  XLIX. 


COSTS  OF  SUIT. 


713.  Composed  of  fees  due  officers. 

714.  Each  party  responsible  for  his 

own  costs. 

715.  Payment  of  fees  in  advance,  or 

to  end  of  term. 

716.  Costs  not  paid  on  demand,  how 

collected. 

717.  Right  of  successful  party;   dis- 

cretion of  the  court. 

718.  Costs  where  demand  is  reduced 

by   payment,    or    a    counter- 
claim is  filed. 

719.  Costs  in  actions  for  assault  and 

battery,  slander,  etc. 

720.  In  suits  against  counties. 

721.  In  case  of  new  trial  or  arrest  of 

judgment. 

722.  In  case  of  appeal  or  certiorari. 

723.  Executors,  administrators   and 

guardians. 


724.  Costs  when  tender   of  debt  is 

made. 

725.  Action  prematurely  brought. 

726.  In  trespass  to  try  title. 

727.  What  may  be  taxed  as  costs. 

728.  Compensation  of  guardians  ad 

litem. 

Witness  fees. 
Costs  on  motions,  exceptions  and 

other  pleadings. 

731.  Fee  books;  fee  bills;  penalty  for 

taking  illegal  fees;  posting  list 
of  fees. 

732.  Fees  of  clerks  of  district  courts. 

733.  Fees  of  county  judge. 

734.  Fees  of  clerks  of  county  courts. 

735.  Fees  of  sheriffs  and  constables. 

736.  Relaxing  costs. 


§  713.  Costs  of  suit,  composed  oi  fees  due  officers. 

Incident  to  the  suit  are  the  costs,1  which  are  composed  of  the 
fees  due  the  officers  of  court,  for  services  rendered  during  the  prog- 
ress of  the  suit.  Ordinarily  no  costs  are  allowed  to  the  successful 
party,  to  reimburse  him  for  the  expenses  incurred  in  the  suit  by 
the  employment  of  an  attorney,  etc.  The  compensation  of  the 
attorney  is  regulated  by  agreement  between  him  and  his  client,  and 
-is  paid  by  the  latter.2 

1  State  v.  Dyches,  28  T.  535.    Where  a  judgment  in  favor  of  a  plaintiff  has 
'been  reversed  on  a  subsequent  judgment  in  the  district  court  in  his  favor,  he  is 
•not  entitled  to  recover  from  the  defendant  the  costs  that  had  been  previously 
adjudged  against  him  by  the  appellate  court.     Farquhar  v.  Hendley,  24  T.  300. 

2  Article  1212  of  the  Revised  Statutes  of  1879  (Civil  Code,  art.  1211)  allowed  a 
reasonable  fee  to  the  attorney  appointed  to  defend  for  a  defaulting  non-resident 
defendant  cited  by  publication.     This  provision  is  omitted  from  the  revision  of 
'1895,  though  article  1346  provides  for  the  appointment  of  an  attorney  in  such 
cases. 

Where  a  sheriff  takes  an  indemnity  bond  in  levying  an  attachment,  and  is 
sued  for  damages,  he  is  properly  allowed  reasonable  attorney's  fees  for  defend- 
ing the  suit.  Schmick  v.  Noel,  72  T.  1  (8  S.  W.  Rep.  83). 

When  the  statute  above  referred  to  was  in  force,  it  was  held  that  when  judg- 


*.]  COSTS  or  SLIT. 

I'.y  act  of  1SS9,  provision  is  made  for  the  recovery  of  an  attor- 
.  nut  to  exceed  $10,  in  suits  against   railroad  companies 
on  claims,  not  in   excess  of  $50,  for  personal   services  rendered 
or  labor  done,  or  for  damages,  or  for  overcharges  on  freight,  or 
killed  or  injured.1     The  act  is  constitutional.-     Provis- 
ion  is  also  made   for  the  recovery  of  reasonable  attorney's  fees 
for  the  prosecution  and  collection  of  claims  against  life  and  health 
insurance  companies.-4    This  act  is  held  valid.4 

§  714.  Each  party  responsible  for  his  own  costs. 

h  party  to  any  suit  is  responsible  to  the  officers  of  the  court 
for  the  costs  incurred  by  himself;5  and  in  case  the  costs  cannot  b© 
collected  of  the  party  against  whom  they  have  been  adjudged,  ex- 
ecution may  issue  against  any  party  in  the  suit  for  the  amount  of 
incurred  by  him,  but  no  more.6     "When  the  plaintiff  recovers 
judgment  for  costs,  but  is  unable  to  make  them  out  of  the  defend- 
ant, he  is  liable  to  the  officers  of  the  court  for  so  much  only  of  the 
of  the  suit  as  was  incurred  in  his  behalf;  and  the  liability  of 
his  surety  for  the  costs  is  the  same.7 

ment  was  rendered  against  one  cited  by  publication,  in  a  suit  by  a  material- 
man  to  enforce  his  lien,  the  fee  allowed  the  attorney  appointed  to  defend  t In- 
absent  defendant  might  be  taxed  in  the  bill  of  costs,  and  satisfied  out  of  tlie 
proceeds  of  the  sale  of  the  property  on  which  the  lien  is  enforced.    Read  v. 
( rillfspie,  84  T.  42.     But  a  personal  judgment  for  costs  against  a  defaulting  non- 
resident defendant  cited  by  publication  is  void.     Taliaferro  v.  Butler.  77  T.  578 
•  14  S.  W.  Hep.  191);  Hardy  v.  Beaty,  84  T.  562  (19  S.  W.  Rep.  778);  Gunt.-r  v. 
Armstrong,  2  Civ.  A  pp.  599  (21  S.  W.  Rep.  607).     So  held  in  a  suit  for  partition. 
Freeman  v.  Preston,  29  S.  W.  Rep.  495;  Foote  v.  Sewall,  81  T.  KM  (17  S.  W.  Rep. 
While  an  action  for  title  to  an  undivided  interest  in  a  tract  of  land  upon 
e  by  publication  against  lion-resident  defendants  is  valid,  yet  judgment 
linst  such  non-residents  is  without  jurisdiction,  and  a. 
sal-  under  it  void.     Hardy  v.  Beaty,  84  T.  562  (19  S.  W.  Rep. 
»  R  a  4548. 

C.  &  a  F.  Ry.  Co.  v.  Ellis,  87  T.  19  (26  &  W.  Rep.  985;  18  &  W.  Rej> 
W.  H,-]..  9 
»R  S.  :ji>71. 

4  L'nion  Cent  L.  Ins.  Co.  v.  Chowning,  86  T.  654  (26  S.  W.  Rep.  982 1:  Mm.  L. 
..  v.  Walden,  26  a  W.  Rep.  1012;  Same  v.  Blodgett.  '.'7  S.  \V.  I;  p.  •>»'..  !„ 
all«. wing  costs  to  a  garnish.ee  he  may  also  be  allowed  a  reasonable  att« •:  • 
fee.  R  a  253:  Johnson  v.  Blanks,"  68  T.  495  (4  S.  W.  Rep  B51  :  Willis"  v. 
H.ath.  75  T.  121  ,12  a  W.  Rep.  971);  Curtis  v.  Ford,  78  T.  262  (14  a  W.  Rep. 
614). 

9L  1 121.  2491;  Anderson  v.  M.-Kinney,  22  T.  053. 

•  R  a  2491.  A  person  by  becoming  a  surety  on  a  replevin  bond  becomes  a. 
part  v  t<>  th»>  suit,  and  is  liable  to  have  costs  adjudged  against  him.  Mills  v. 
Ha. -k.-tt.«WT.  580.  t>F  0-  £*  * 

:Tarlton   v.  Weir,  1   A  pp.  C.  C.,  £  146;  Cleveland  v.  Henderson.  4  T.  1- 
jud^ment  in  favor  of  the  officers  of  the  court  for  costs  in< -in-red  l>y  the  su 
ful  against  the  losing  party  belongs  to  such  officers.     It  i-annot  be  offset  by  a 
claim  against  the  successful  party.    That  he  was  insolvent  will  not  make  an  ex- 
•11  to  the  rule.     Kuddt-11  v.  Shirks,  79  T.  3W  (!')  S.  \V.  Hep.  239). 


078  COSTS  OF  SUIT.  [§§  715,  716. 

Costs  in  contested  election  cases  are  taxed  according  to  the  laws 
•governing  costs  in  otiier  cases,  except  when  otherwise  specially 
provided.  A  bond  for  costs  may  be  required.1 

§  715.  Payment  of  fees  in  advance,  or  to  end  of  term. 

<  Mticers  receiving  any  process  to  be  executed  are  not  entitled  in 
any  case  to  demand  their  fees  for  executing  the  same  in  advance  of 
such  execution,  but  their  fees  shall  be  taxed  and  collected  as  other 
costs  in  the  case.2 

No  sheriff  or  constable  is  required  to  execute  any  process  in  civil 
cases  coming  from  any  county  other  than  the  one  in  which  he  is 
an  officer,  unless  the  fees  allowed  him  by  law  for  the  service  of  such 
process  shall  be  paid  in  advance.  But  when  the  pauper  oath  is 
filed,  as  provided  by  statute,3  the  clerk  issuing  the  process  must  in- 
dorse thereon  the  words  "  pauper  oath  filed,"  and  sign  his  name 
officially  below  them,  and  the  sheriff  or  constable  in  whose  hands 
such  process  is  placed  for  service  must  serve  the  same  as  in  other 
cases.4 

It  is  lawful  for  the  clerks  of  the  district  and  county  courts  to  de- 
mand payment  of  all  costs  due  in  each  and  every  case  pending  in 
their  respective  courts,  up  to  the  adjournment  of  each  term  of  said 
courts.5  This  article  applies  to  pending  suits  only,  and  not  to  those 
in  which  final  judgments  have  been  rendered.6 

§  716.  Costs  not  paid  on  demand,  how  collected. 

Should  any  party,  against  whom  costs  have  been  taxed,  fail  or 
refuse  to  pay  the  same  within  ten  days  after  demand  for  payment, 
the  clerk  may  make  out  a  certified  copy  of  the  bill  of  costs  then 
due,  and  place  the  same  in  the  hands  of  the  sheriff  or  constable  for 
collection.  Such  certified  bill  of  costs  will  have  the  force  and  ef- 
fect of  an  execution.  The  removal  of  a  case  by  appeal  will  not 
prevent  the  clerk  from  issuing  his  execution  for  costs,  at  the  end  of 
the  term  at  which  the  appeal  is  taken.7  The  sheriff  or  constable, 

1  R  S.  1804./. 

2  R  S.  2487. 
»RS.  1442. 
«RS.  1421. 
»  R  S.  1422. 

6  Wilson  v.  Simpson,  68  T.  306  (4  S.  W.  Rep.  839). 

7R  S.  1423.  This  article  gives  the  remedy  for  the  collection  of  costs  in  case 
the  demand  of  payment  up  to  the  end  of  the  term  is  not  complied  with,  in  cases 
in  which  final  judgment  has  not  been  rendered.  A  bill  of  costs  incurred  after 
linal  judgment  and  the  end  of  the  term,  and  made  by  reason  of  suing  out  a 
writ  of  error,  does  uot  have  the  force  and  effect  of  an  execution,  and  any  sale 
made  thereunder,  as  under  execution,  is  void.  Wilson  v.  Simpson,  68  T.  306 
(4  S.  W.  Rep.  839).  The  clerk,  after  an  appeal  bond  has  been  filed,  may  issue 
execution  for  the  costs  made  by  the  appellant  but  for  no  other  costs.  Extence 
v.  Stewart,  23  S.  W.  Eep.  291  An  agreement  between  the  parties  for  a  stay  of 
execution  will  not  prevent  the  issuance  of  execution  in  behalf  of  the  officers  of 
the  court.  Clegg  v.  De  Bruhl,  45  T.  141. 


§  717.]  COSTS  OF  SUIT.  679 

upon  demand  ami  failure  to  pay  the  bill  of  costs,  may  levy  upon  a 
sutlicient  amount  of  property  of  the  person  from  whom  said  costs 
may  IK-  due  to  satisfy  the  same,  and  sell  such  property  according 
nt  the  law  irovernino;  sales  under  execution.  Where  such  party  is 
not  a  re>ident  of  the  county  where  suit  is  pending,  payment  of  the 
may  In-  demanded  of  his  attorney  of  record.  The  clerk  is  not 
allowed  to  charge  any  fee  for  making  out  such  certified  bill  of  costs, 
nor  is  the  sheriff  or  constable  allowed  any  fees  for  collecting  the 
>ame.  unless  he  is  compelled  to  make  a  levy;  and  in  case  of  levy  or 
sale,  he  may  charge  and  collect  the  same  fees  as  are  allowed  for 
o>llect  ino;  money  under  other  executions.1 

Any  rlerk  of  a  court,  when  any  suit  is  determined  in  his  court 
and  the  costs  are  not  paid  by  the  party  against  whom  the.  same 
have  been  adjudged,  may  issue  execution  therefor  against  such 
party,  under  the  same  rules  governing  executions  in  other  cases,  to 
be  levied  and  collected  as  in  other  cases.  A  bill  of  costs,  showing 
each  item  thereof,  for  which  the  party  against  whom  the  execution 
issues  is  liable,  must  accompany  each  execution  or  order  of  sale. 
Any  person  to  whom  any  costs  are  due  in  a  suit  or  action  which 
has  been  determined  may  demand  that  execution  issue  therefor, 
and  thereupon  it  is  the  duty  of  the  clerk  to  issue  execution  for  all 
-  due  by  [to]  such  party  at  once.2  No  execution  for  costs  is  per- 
mitted to  issue  until  after  judgment  rendered  therefor  by  the  court.1 
But  in  all  cases  in  which  final  judgment  has  been  rendered,  it  is 
made  the  duty  of  the  clerk,  from  and  after  the  adjournment,  to  issue 
execution  to  enforce  the  judgment  and  to  collect  the  costs  remain- 
ing unpaid.4  The  several  items  of  the  bill  of  costs  to  be  collected 
under  the  execution  must  be  indorsed  thereon  in  intelligible  words 
and  figures.* 

§  717.  Right  of  successful  party;  discretion  of  the  court. 
The  successful  party  to  a  suit  may  recover  of  his  adversary  all 
the  costs  expended  or  incurred  therein,  except  where  it  may  be 

IRS.  ll'JI. 

JR  S.  -,'  Is"  .'190.  As  to  the  issuing  of  execution  against  the  successful  party 
where  the  costs  cannot  be  made  out  of  the  opposite  party,  see  Simpson  v.  Trim- 
ble, 44  T.  810. 

»  R  S.  249a 

4  K.  s.  j:;.'t.  An  execution  for  costs  is  properly  issued  in  the  name  of  the 
party  i.  .<>v, -ring  costs.  It  should  not  be  issued  in  the  name  of  the  officers  en- 
title,! to  tli,.  rusts.  Smith  v.  IVrkins,  si  T.  LVJ  i  Hi  S.  \V.  Rep.  805). 

Wher..  ; i  cause  has  been  appealed  ami  reverted  an, I   ivmanded  and  is  still 

jH'iulinic.  ami  an  exerut i,in  ^sues  against  tin-  successful  party  in  the  appeal  for 

costs  nia  le   I iy  him,  an<l   lie  se.-ks  to  enjoin    it.  lie  cannot  join   another   party 

-i  whom  the  <-,,-t-  h,i\>   K.-.-H  adjudge,!  ami  obtain  judgment  against  him. 

'I'll,-  pi-,.per  prai-ti.-,-  i-  l>\  mnti»n  in  the  district  court  for  adjustment  of  cost*. 

Moore,  *  s.  W.  Rep 

»  R.  S,  2338. 


680  COSTS  OF  SUIT.  [§  717. 

otherwise  provided  by  law.1  The  court  may,  for  good  cause  to  be 
stated  on  the  record,  adjudge  the  costs  otherwise  than  as  directed 
by  the  statute  on  the  subject  of  costs.2  All  fees  allowed  by  statute,, 
pertaining  to  suits  or  actions  in  courts,  must  be  allowed  and  taxed 

1  R.  S.  1425.  In  equity  and  in  suits  for  specific  performance,  prima  facie  the 
party  who  fails  is  liable  for  the  costs;  but  this  depends  upon  circumstances,  to- 
be  determined  by  the  court.  Walling  v.  Kinnard,  10  T.  508;  Latham  v.  Taylor, 
15  T.  247.  In  an  action  to  enjoin  the  enforcement  of  a  void  judgment,  where 
the  owner  of  the  judgment  pleads  in  reconvention  the  cause  of  action  on  which 
th?  judgment  is  founded,  and  recovers,  the  costs  of  the  suit  should  be  adjudged 
against  him.  G.,  C.  &  S.  F.  Ry.  Co.  v.  Schneider,  28  S.  W.  Rep.  260. 

When  judgment  is  rendered  in  favor  of  part  of  the  defendants  they  should 
recover  costs  of  the  plaintiff.  International  &  G.  N.  Ry.  Co.  v.  Hall,  78  T.  657 
(15  S.  W.  Rep.  108).  In  a  suit  on  a  note  and  to  foreclose  a  lien  on  land,  if  a 
moneyed  judgment  with  decree  of  foreclosure  be  entered  for  plaintiff,  it  carries 
all  costs  against  the  defendant,  including  such  as  may  have  been  incurred  at 
his  instance.  Bellamy  v.  McCarthy,  75  T.  293  (12  S.  W.  Rep.  849).  Where  there 
are  several  defendants,  and  the  plaintiff  dismisses  as  to  some  and  recovers  judg- 
ment against  others,  it  is  error  to  tax  the  costs  incurred  in  the  suit  by  those  dis- 
missed from  the  suit  against  those  against  whom  recovery  was  had.  Remedy 
by  motion  to  retax  costs  if  necessary.  Clark  v.  Adams,  80  T.  674  (16  S.  W.  Rep. 
552). 

2R  S.  1438.  When  the  costs  are  adjudged  by  the  court  otherwise  than  is  pro- 
vided by  law,  the  reason  why  this  is  done  must  appear  of  record.  A  jury  have 
no  power  to  adjudge  costs  contrary  to  the  provisions  of  the  statute;  and  if  they 
so  adjudge,  the  verdict  should  be  set  aside  and  disregarded.  Flores  v.  Cov,  1 
App.  C.  C.,  §  804. 

In  an  equitable  proceeding,  and  also  when  the  judgment  as  to  a  portion  of  the 
matters  in  controversy  is  given  for  one  of  the  parties  and  against  him  as  to> 
other  matters,  the  question  of  costs  is  left  to  the  discretion  of  the  court  below. 
Spiers  v.  Purcell,  2  U.  C.  624.  In  foreclosing  a  lien  upon  several  pieces  of  prop- 
erty, the  court  may  charge  the  whole  amount  of  costs  against  all  the  property, 
instead  of  taking  it  pro  rata  against  the  various  pieces.  Cave  v.  City  of  Hous- 
ton, 65  T.  619. 

The  settled  practice  in  rendering  final  judgment  in  this  country  in  favor  of 
the  defendant  has  been,  it  is  said,  to  adjudge  the  costs  against  the  plaintiff. 
Jennings  v.  Moss,  4  T.  452.  Where  the  verdict  of  the  jury  is  in  favor  of  the 
plaintiff  generally,  and  there  are  two  defendants,  appearing  equally  in  fault,  it 
is  error  to  render  judgment  for  costs  against  one  alone.  Herndon  v.  Rice,  22  T. 
455. 

Where  in  an  action  for  damages  ex  contractu,  the  jury  found  that  both  parties 
were  guilty  of  fraud,  and  that  each  should  pay  half  the  costs,  it  was  within  the 
discretion  of  the  court  to  render  judgment  against  the  plaintiff  for  all  the  costs. 
Baker  v.  Wofford,  9  T.  516.  And  it  was  held  that  the  court  properly  ignored  an 
apportionment  by  the  jury  in  an  attachment  case  in  which  the  defendant  re- 
convened for  damages.  Garrett  v.  McMahon,  34  T.  307. 

The  court  may  sometimes  be  influenced  by  the  obstinacy  of  the  defense. 
Yeary  v.  Cummins,  28  T.  91. 

Where  a  judgment  by  default  against  a  garnishee  was  set  aside  on  condi- 
tion that  he  pay  the  costs,  his  failure  to  pay  the  costs  did  not  entitle  the  opposite 
party  to  judgment  anew  against  him.  The  whole  matter  was  within  the  con- 
trol of  the  court,  and  it  would  not  have  been  beyond  its  jurisdiction  to  modify 
the  order  taxing  costs  so  as  to  relieve  him  from  them  entirely.  Marx  v.  Ep- 
stein, 1  App.  C.  C.,  §  1319. 


COSTS   OF   SUIT.  »'.>[ 

in  the  l»ill  of  costs  against  the  party  cast,  except  where  it  is  other- 
provided  by  l;i\v  or  adjudged  by  the  court.1 

In  divorce  proceedings  the  court  may  award  costs  to  the  party  in 

whose  behalf  the  sentence  or  decree  shall  pass,  or  it  may  derive  that 

each  party  shall  pay  his  or  her  own  costs,  as  to  the  court  shall  ap- 

reas.  >nable.-    The  costs  of  a  partition  suit  are  adjudged  ji.irainst 

each  party  to  whom  a  share  is  allotted,  in  proportion  to  the  value 

of  his  share.3     Where   defendants  litigate  a  partition   suit  it  is 

proper,  on  the  plaintiff  succeeding,  that  he  have  judgment  for  his 

up  to  the  final  judgment,  the  costs  of  partition  to  be  paid  ///v 

iiy  those  taking  in  partition.4 

Where  no  cost  bond  is  required  of  plaintiff,  and  the  suit  abates 
by  reason  of  the  death  of  the  defendant,  and  no  effort  is  made  to 
revive  it,  a  judgment  for  costs  against  the  plaintiff  and  in  favor  of 
the  officers  is  void.  Plaintiff  is  liable  to  the  officers  of  the  court  for 
his  own  costs  only,  and  it  seems  that  their  proper  remedy  is  by  ac- 
tion against  him.5 

?'  718.  Costs  where  demand  is  reduced  by  payment,  or  a  counter- 
claim is  filed. 

Where  the  plaintiff's  demand  is  reduced  by  payment  to  an  amount 
which  would  not  have  been  within  the  jurisdiction  of  the  court,  the 
defendant  recovers  his  costs.6 

Whenever  a  counter-claim  is  pleaded  under  the  provisions  of  tlu- 
statute,  the  party  in  whose  favor  final  judgment  is  rendered  re- 
covers  his  costs,  unless  it  be  made  to  appear  on  the  trial  that  the 

1  R  S.  2480. 

2  R  S.  2988.    In  suits  for  divorce  the  question  of  costs  is  left  much  to  the  dis- 
cn-tion  of  the  court.     Withee  v.  Wither.  ."in  T. 

»R  a  3635:  Johns  v.  Northcutt,  49  T.  444. 

<  \-k.-Y  \.  Williams.  74  T.  294  (11  &  W.  Rep.  1101).    In  a  suit  for  specific  per- 

iiice  and  for  jtartition  of  land  against  unknown  owners  alleged  to  be  non- 

:its,  judgment  fur  partition  wa--  valid,  hut  judgment  for  costs  against  the 

unknown  owners  was  without  jurisdiction  and  was  void.     The  execution  under 

such  judgment  for  costs  was  void,  and  a  purchaser  under  it  took  nothing.    Foote 

v.  Sewall,  81  T.  659  (17  S.  W.  1 

*Hollingsworth  v.  Bagley,  35  T.  345.    On  the  death  of  a  trustee,  if  the  creditor 
goes  into  equity  for  the  api>ointment  of  a  successor,  the  costs  are  taxed  against 
him,  to  come  out  of  the  trust  fund.     Buchanan  v.  Hart,  31  T.  047.     It  ha- 
held  that  as  the  distinction  between  law  and  equity  is  abolished  in  thi- 
we  are  not  confined  to  the  strictness  of  common-law  courts  on  the  subject  of 
costs.     Payne  v.  Benham.  16  T.  364;  Gibson  v.  Moore.  •»  T.  611.    The  grantor  in 
a  fraudule:  ,in  e  may  be  charged  with  the  costs  of  a  suit  in  which  the 

conveyance  is  set  aside.     Birdwell  v.  Butler,  13  T.  338i  Teas  v.  McDonald,  13  T. 
349. 

«•  R  S.  1432.    Where  it  appeared  upon  the  face  of  the  petition  that  all  of  plaint- 
iff's demand  was  barred  by  limitation, except  an  amount  below  the  jurisdiction 
of  the  court,  it  was  not  error,  upon  exception  \>y  the  defendant,  to  .li>n 
plaintiff's  cost     Lowe  v.  Dowbarn,  26  T.  507:   r.rowning  v.  Hart,  29  T.  -'71: 
v.  Ryon,  9  T.  405;  Cochran  v.  Kt-llum.  4  T.  1J". 


COSTS    OF    SUIT.  [§  719-721. 

counter-claim  of  the  defendant  was  acquired  after  the  commence- 
ment of  the  suit,  in  which  case,  if  the  plaintiff  establishes  a  cause  of 
action  existing  at  the  commencement  of  the  suit,  he  will  recover  his 
costs.1  Where  the  plaintiff  recovers  judgment  for  an  amount  that 
would  not  have  been  within  the  jurisdiction  of  the  court,  his  de- 
mand having  been  reduced  on  the  trial  by  counter-claim,  and  not 
l>v  payment,  it  is  error  in  the  court,  without  cause  therefor  stated 
on  the  record,  to  adjudge  against  him  the  costs  of  the  suit.2  Where 
defendant  recovers  a  judgment  for  the  excess  of  his  counter-claim 
over  plaintiff's  claim,  he  is  entitled  to  costs.3  The  defendant  may 
set  up,  either  originall}7"  or  by  amendment,  a  claim,  acquired  after 
suit  brought,  subject  to  the  question  of  costs.4 

§  719.  Costs  in  actions  for  assault  and  battery,  slander,  etc. 

In  all  civil  actions  for  assault  and  battery,  slander  and  defama- 
tion of  character,  if  the  verdict  or  judgment  be  for  the  plaintiff, 
but  for  a  less  sum  than  twenty  dollars,  each  party  will  .be  taxed 
with  the  costs  incurred  by  him  in  such  suit.5  The  fact  that  tender 
was  made  before  suit  brought  does  not  alter  the  rule.0 

§  720.  In  suits  against  counties. 

When  the  plaintiff  in  a  suit  against  a  county  fails  to  recover  a 
greater  amount  than  the  county  commissioners'  court  of  such  county 
shall  have  allowed  him  on  the  presentation  of  his  claim  to  such 
-court,  he  must  pay  all  costs  of  suit.7 

§  721.  In  case  of  new  trial  or  arrest  of  judgment. 

The  costs  of  all  new  trials  may  either  abide  the  event  of  the  suit 
or  may  be  taxed  against  the  party  to  whom  the  new  trial  is  granted, 
AS  may  be  adjudged  by  the  court  at  the  time  of  granting  such  new 
trial.  When  the  judgment  is  arrested  or  the  verdict  set  aside  be- 
cause of  the  insufficiency  of  the  pleadings  of  the  party  in  whose 
favor  the  verdict  or  judgment  was  rendered,  the  costs  thereof  will 
be  taxed  against  the  party  whose  pleadings  shall  have  been  ad- 

1  R.  S.  753. 

2  Denson  v.  McCasland,  2  Civ.  App.  184  (21  S.  W.  Rep.  169). 

'McCormick  H.  M.  Co.  v.  Gilkey,  23  S.  W.  Rep.  325;  Hall  v.  Hodge,  2  T.  323. 
In  an  action  by  a  borrowing  stockholder  of  a  building  and  loan  association  to 
have  payments  on  stock  credited  on  the  note  given  for  the  loan  and  also  to  have 
payments  of  usurious  interest  credited  thereon,  judgment  was  rendered  for  the 
association  after  deduction  of  interest  payments,  and  it  was  held  that  taxation 
of  part  of  the  costs  against  plaintiff  was  not  error.  Sweeney  v.  El  Paso  Build- 
ing &  Loan  Ass'n,  26  S.  W.  Rep.  290. 

4  Thomas  v.  Young,  5  T.  253;  Gaines  v.  Salmon,  16  T.  311;  Parrott  v.  Under- 
wood,  10  T.  48. 

»R.  S.  1433;  Breen  v.  T.  &  P.  Ry.  Co.,  50  T.  43. 

6  Breen  v.  T.  &  P.  Ry.  Co.,  50  T.  43;  Cole  v.  Tucker,  6  T.  266. 

'  R.  S.  798. 


ir. 


iusutlieient.1     An  order  granting  a  new  trial  upon  payment 
of  al  :  th<-  term  is  not  a  judgment  upon  which  an  execution 

may  is>ue  for  sue!  i  costs.-'  Win-re  a  party  is  forced  to  take  a  non- 
suit by  reason  of  a  mistake  of  a  third  party,  without  any  fault  on 
his  part,  the  costs  resulting  should  abide  the  result  of  the  suit.5 

?  722.  In  cases  of  appeal  or  certiorari. 

In  ca^.-s  of  appeal  or  .•,/•/•/"/•,//•/'  taken  by  the  party  against  whom 
the  judgment  was  rendered  in  the  court  below,  if  the  judgment  of 
the  court  above  be  against  him,  but  for  a  less  amount,  he  will  re- 
•cover  the  costs  of  the  court  above,  but  must  pay  the  costs  of  the 
court  below;  if  the  judgment  be  against  him  for  the  same  "or  a 
greater  amount  than  in  the  court  below,  the  adverse  party  will  re- 
cover the  costs  of  both  courts.4  In  cases  of  appeal  or  certin-m't 
taken  by  the  party  in  whose  favor  the  judgment  was  rendered  in 
the  court  below,  if  the  judgment  of  the  court  above  be  in  his  favor 
for  a  -reater  amount,  he  will  recover  the  costs  of  both  courts.:  if 
the  judgment  be  in  his  favor,  but  for  the  same  or  a  less  amount  than 
in  the  court  below,  he  will  recover  the  costs  of  the  court  below  and 
must  pay  the  costs  of  the  court  above.5 

The  court  may,  for  good  cause,  to  be  stated  on  the  record,  ad- 
judge the  costs  otherwise  than  above  directed;6  but  where  judg- 
ment went  against  a  party  in  the  justice's  court  for  $111,  and  on 
appeal  by  him  the  judgment  was  reduced  to  $52.50,  it  was  held  that 
his  failure  to  defend  in  the  justice's  court  was  not,  in  view  of  the 
amount  of  reduction  of  the  judgment,  a  sufficient  reason  for  divid- 
ing the  costs  of  the  county  court.7 

!R  S.  \\-\\,  1  4  £5.    The  question  of  costs  becomes  res  adjudicata  where  pay- 
ment thereof  is  imjiosed  as  terms  upon  granting  a  motion  for  a  new  trial,  and 
it  i>  error  for  the  court  to  refuse  to  reform  the  final  judgment  accordingly. 
The  action  of  the  court  in  refusing  to  reform  the  judgment  being  apparent  on 
the  record,  no  bill  of  exceptions  is  necessary.    Randall  v.  Collins,  52  T.  4:r>.     A> 
to  granting  new  trials  on  payment  of  costs,  see  Clifton  v.  Lilley,  12  T.  130; 
Houston  v.  St.  -i  IT.  U  T.  424;  Gorman  v.  McFarland,  18  T.  287. 
»Herndon  v.  Rice,  21  T.  455. 
'Peek  v.  MrKellar.  83  T.  Mi 

1  K'.  s.  I4:i«;  Tex.  &  Pac.  Ry.  Co.  v.  Taylor,  2  App.  C.  C.,  §  417;  So.  Par.  Ry.  Co. 
v.  Duncan,  3  App.  C.  C..  g  235;  Rogers  v.*  Fox.  4  App.  C.  t  ..  g  B5;  1'nuit  v.  Kelley, 
4  App.  <  .  i  '..  ?  IT'.:  G.,  C.  &  a  F.  Ry.  Co.  v.  King*-.  4  App.  t 

.O..  v.  Sum  row.  4    ApfK  G.  CL.  |   '•>'•>":  I'hillips  v.  Sass,  1   App.  t 
Phillips   v.  A'lkin>.  1  App.  d<  I.  &  G.  N.  Ry.  Co.  v.  John-im.  1  App.  C. 

BSS:   Han.  lei   \.  Kramer.  1    App.  C.  C.,  §  828;  Anderson   v.  Herman.  1  App. 
9;    Mex.  Cent.  Ry.  Co.  v.  Cliai-man.  '.'I  S.  \V.  K-p.  '...>.     S  •••  Foreman  v. 
'  T.  729;  Norton  v.  Walker,  19  T.  192;  H..K  -liki-s  v.  Ch.-vallier.  12  T. 
•J.M:   K.  .reman  v.  Gregory.  17  T.  P.i::. 
»R  S.  1437  :  Gallagher"  v.  Finley.  2  App.  (  '.  CL,  ?  624. 

«R.  S.  10:  (i..  c.  &  S.  F.  Ry.  Co  v.  Hemler-m.  *:>,  T.  70  (18  S.  W.  Rep.  432). 
v   &  F.  Ry.  Co.  v.  Klu-.-.  I  App.  C  ' 


GSi  COSTS   OF    SUIT.  [§  723. 

In  the  justice  court  plaintiff  recovered  judgment  foreclosing  a 
lien  on  certain  personal  property  if  found,  and  if  not,  for  the  value 
thereof,  which  was  assessed  at  $57.52.  Upon  appeal  to  the  district 
court  by  defendant  judgment  was  rendered  for  plaintiff  for  $55.50 
and  costs  in  the  justice  court,  but  against  him  for  the  costs  of  the 
district  court.  This  was  held  correct.  Each  court  rendered  a  money 
judgment  against  defendant.  The  amount  recovered  by  the  plaint- 
iff on  appeal  being  less  than  that  in  the  justice  court,  the  statute 
regulating  costs  was  applicable.  If  the  principal  of  the  judgment 
rendered  upon  appeal  be  less  than  that  of  the  judgment  appealed 
from,  the  rule  as  to  costs  is  the  same,  although  the  aggregate  of 
principal  and  interest  of  the  former  judgment  exceeds  that  of  the 
latter.1  So  where  recovery  was  had  for  $35  in  a  justice  court,  and 
defendant  appealed,  and  on  appeal  judgment  was  rendered  for  $30 
and  accrued  interest,  aggregating  over  $35,  it  was  held  error  to 
compute  interest  during  the  appeal  so  as  to  impose  costs  upon  the 
appellant  when  in  fact  by  appeal  he  had  reduced  the  recovery.2 

In  appeals  from  justices  the  justice  is  required  to  send  up,  with  the 
transcript,  a  certified  copy  of  the  bill  of  costs,  taken  from  his  fee 
book.3  This  evidently  means  a  bill  of  costs  showing  each  item  of 
costs,  and  not  a  general  statement.  Where,  instead  of  taxing  the 
fees  of  each  witness  separately,  the  fees  of  all  are  aggregated  into 
a  single  item,  thus,  "  witness  fees  in  justice's  court,  $117.76,"  a& 
shown  by  the  justice's  transcript,  the  charge  is  illegal,  vague,  in- 
definite and  uncertain,  and  should  be  rejected.4 

§  723.  Executors,  administrators  and  guardians. 

The  statutes  in  relation  to  executions  and  payment  of  costs  do 
not  apply  to  executors,  administrators  or  guardians,  but  in  cases 
where  costs  are  adjudged  against  an  estate  of  a  deceased  person,  or 
of  a  ward,  the  costs  must  be  collected  as  provided  in  the  titles  "  Es- 
tates of  Decedents  "  and  "  Guardian  and  Ward." 5  The  provisions 
of  the  law  regulating  costs  and  security  therefor  apply  to  matters, 
of  guardianship,  where  the  same  are  not  expressly  provided  for  in 
the  title  of  the  statutes  relating  to  guardian  and  ward.6  When  the 
matter  in  controversy  concerns  the  administrator  individually,  and 

i  Conner  v.  Elkins,  66  T.  551  (1  S.  W.  Rep.  798);  Bailey  v.  James,  64  T.  546. 

2G.,  H.  &  S.  A.  Ry.  Co.  v.  Wehners,  74  T.  564  (12  S.  W.  Rep.  281).  The  dis- 
missal by  the  county  court  of  an  appeal  from  a  justice  court,  for  want  of  juris- 
diction, does  not  deprive  that  court  of  the  power  to  render  judgment  for  the 
costs  of  the  appeal.  Llano  Improvement  &  F.  Co.  v.  White,  5  Civ.  App.  109  (23- 
S.  W.  Rep.  594). 

a  R.  S.  1673. 

4  Perry  v.  Harris,  1  App.  C.  C.,  §  479. 

5  R  S.  2492.    As  to  Estates  of  Decedents,  see  Revised  Statutes,  articles  2245-54, 
As  to  Guardian  and  Ward,  see  Revised  Statutes,  articles  2784-88. 

«  R.  S.  2788. 


:!.  725.]  COSTS  OF  SUIT. 

not  in  his  representative  capacity,  he  is  personally  liable  for  costs.1 
Where  in  an  action  of  trespass  to  try  title  a  judgment  for  costs  is 
entered  against  an  administrator,  it  will  not  authorize  a  sale  of  the 
property  of  the  estate  on  execution.2 

'l.  Costs  when  tender  of  debt  is  made. 

If  the  defendant  pleads  a  tender  before  suit  brought,  and  pays 
the  money  into  court,  if  the  plaintiM'  does  not  recover  judgment  be- 
yond the  amount  paid  into  court,  he  will  be  liable  for  all  costs.3  If 
the  tender  is  made  after  suit  brought,  the  phiintill'  will  recover 
up  to  tin  time  the  money  is  paid  into  court ;  if  he  proceed 
with  the  action  and  fail  to  recover  beyond  the  amount  paid,  he  will 
be  liable  for  all  subsequent  costs.4  A  plea  of  tender  is  not  appli- 
cable in  an  action  for  the  recovery  of  unliquidated  damages  ;•'•  but 
where  a  tender  is  made  in  such  a  case,  it  is  held  that  the  costs  ought 
to  be  divided,  as  provided  by  the  statute  in  actions  for  assault  and 
tery  and  slander,  where  the  plaintiff  recovers  less  than  *•_'"." 
Where  there  is  a  standard  by  reference  to  which  an  estimate  of  the 
amount  due  may  be  made,  the  amount  is  in  effect  liquidated,  and 
•its  a  proper  case  for  tender,  entitling  the  defendant  to  exemp- 
tion from  costs,  provided  the  amount  be  paid  into  court  with  the 
plea.1 

§125.  Action  prematurely  brought. 

The  only  effect  of  beginning  a  suit  before  the  maturity  of  the  de- 
mand on  which  it  is  based,  but  which  matures  before  the  trial  (that 
fact  being  shown  by  amendment),  is  to  subject  the  plaintiff  to  the 
payment  of  costs  incurred  before  the  maturity  of  the  demand.1 
Where  suit  by  attachment  is  brought  on  a  note  not  due,  and  the 
plaintiff  amends  after  the  maturity  of  the  note,  asking  judgment 
thereon,  and  the  attachment  is  q-iashed,  costs  should  be  adjudged 
against  the  plaintiff  up  to  the  date  of  the  amendment."  Where  a 
suit  is  prematurely  brought,  the  plaintiff  may  amend  and  set  up  a 
new  cause  of  action,  but  the  costs  up  to  the  amendment  should  be 
adjudged  against  him.10 

1  Peabody  v.  Murks.  »rt  T.  19.    See  Davis  v.  Thomas,  5  T.  889. 
•Schmidt  v.  Hun*.  7  Civ.  App.  3,  \V.  i;.-p.  ln.Vti.     A  judgment  ;i-:iin>(  :i 

deceased  intestate  may  be  revived  against  the  administrator  at  the  cost  of  the 
plaintiff.  Cul.-v.  i;..l..-rtM.ii.  6  T.  856. 

\rrh.  IV.  ]:',:-.   ••  Arrh.  IV.  'Jnii. 
<  ->  An-h.  iv.  -Jo:?;   sim..n  v.  Allrn,  76  T.  398  (18  &  W.  Rep.  296);  Berry  v.  Davis, 

191  (13  S.  W.  Rep.  978). 

»Sedg.  on  Dam.  580;  Breen  v.  T.  &  P.  Ry.  Co.,  50  T.  48;  Cole  v.  Tucker,  6  T. 
Mft 

1=5 :   »re««n  v.  T.  &  I'.  Ry.  Co.;  50  T.  43. 
•  Wall  ill};  v.  Kinii:ir.l.  K'  T.  :>08. 
•Cri'-.-.-iit   Ins  CO  v.  Camp,  ill   'I'.  .Y.M. 

1  Arn. .Id  v.  Willis  'I-  T  tK    »  B,  W.  K-  p.  185).     See  Cox  v.  Ri-inhardt.  4  T.  591. 
10  Ft.  \V.  City  MilM1,,.  v.  Milam.  1  Ap  M7, 


CSG  COSTS  OF  SUIT.  [§  720. 

§  726.  In  trespass  to  try  titlo. 

In  this  action,  if  the  defendant  asserts  title  to  the  land  in  contro- 
versy, the  plaintili,  if  he  recovers  any  part  of  the  land,  is  entitled 
to  costs.1  If  defendant  should  disclaim  as  to  the  interest  to  which 
he  is  not  entitled,  plaintiff,  on  recovering  an  undivided  interest, 
would  be  liable  for  costs;  but  if  defendant  litigates  the  whole  title, 
he  is  liable  for  the  costs.2  Where  defendant  disclaims  as  to  a  part 
of  the  matter  in  controversy,  and  also  files  a  plea  of  not  guilty,  on 
recovery  by  plaintiff  of  a  part  of  the  land  to  which  the  plea  was 
tiled,  a  judgment  against  defendant  for  all  the  costs  is  proper.3 
Where  defendant  pleads  not  guilty,  and  the  finding  is  in  his  favor 
for  more  land  than  is  claimed  by  plaintiff,  the  judgment  should  be 
that  plaintiff  take  nothing,  and  that  defendant  recover  his  costs ; 4 
so,  also,  where  the  defendant  pleads  title,  with  an  indefinite  de- 
scription of  the  land  claimed,  and  recovers.5 

Where  the  defendant  properly  vouches  in  his  several  warrantors, 
the  costs  of  so  doing  are  correctly  adjudged  against  the  plaintiff, 
in  the  event  that  judgment  goes  in  favor  of  the  defendant  for  plaint- 
iff's failure  to  maintain  the  suit.  Error  in  a  matter  of  this  kind  to 
be  available  on  appeal  must  be  first  called  to  the  attention  of  the 
court  below.6  Where  plaintiff  recovers  against  claimants  of  the 
whole  title,  and  also  against  contestants  of  his  boundary,  he  may 
properly  have  judgment  for  costs  against  all  the  defendants;  and 
if  it  does  not  appear  that  any  items  were  peculiar  to  his  boundary 
contest  which  would  not  have  been  incurred  in  a  suit  between  the 
two  classes  of  defendants,  the  boundary  contestants  are  entitled  to 
judgment  for  costs  against  the  defeated  claimants  of  the  title.7 

i  Dutton  v.  Thompson,  85  T.  115  (19  S.  W.  Rep.  1026);  Meyer  v.  Kirliqks,  25 
S.  W.  Rep.  652;  Mullaly  v.  Noyes,  26  S.  W.  Rep.  145;  Galveston,  L.  &  Y.  Co.  v. 
Perkins,  26  S.  W.  Rep.  257.  But  see  Eddie  v.  Tinin,  7  Civ.  App.  377  (26  S.  W. 
Rep.  732),  where  plaintiff  sued  defendant  as  a  trespasser  upon  certain  lots,  claim- 
ing that  they  embraced  a  strip  of  land  in  controversy,  and,  having  failed  in  the 
suit,  it  was  held  that  he  was  bound  for  the  costs,  though  he  was  adjudged  to  be 
the  owner  of  the  lots. 

2Ballard  v.  Carmichael,  83  T.  355  (18  S.  W.  Rep.  734). 

3H.  &  T.  C.  Ry.  Co.  v.  Heirs  of  Bowie.  2  Civ.  App.  437  (21  S.  W.  Rep.  304); 
Baker  v.  Tom,  4  T.  5;  Blue  v.  Chandler,  17  T.  126. 

4  Musselman  v.  Strohl,  83  T.  473  (18  S.  W.  Rep.  857). 

s  Warren  v.  Frederichs,  83  T.  380  (18  S.  W.  Rep.  750).  In  trespass  to  try  title 
for  a  city  lot  the  jury  found  for  the  plaintiff  and  assessed  the  value  of  the  im- 
provements at  a  sum  greater  than  the  lot,  and  it  was  held  that  this  presented 
no  reason  why  the  plaintiff  should  not  recover  costs.  Jobe  v.  Olire,  80  T.  185 
(15  S.  W.  Rep.  1042).  Where  the  petition  prays  for  the  recovery  of  the  land  in 
controversy,  also  for  the  purchase-money  of  the  certificate,  as  well  as  for  money 
paid  in  accordance  with  the  terms  of  the  certificate,  and  a  decree  is  rendered 
in  favor  of  the  plaintiff  for  the  latter  item  alone,  then,  in  such  case,  the  costs 
of  suit  will  be  adjudged  against  the  plaintiff.  Wheatley  v.  Griffin,  60  T.  209. 

6  Sulphur  Springs  &  M.  T.  Ry.  Co.  v.  St.  L.,  A.  &  T.  Ry.  Co.,  2  Civ.  App.  650  (22 
8.  W.  Rep.  107:  23  S.  W.  Rep.  1012). 

?  Hill  v.  Smith,  6  Civ.  App.  312  (25  S.  W.  Rep.  1079). 


§  72C.]  >re  OF  sAir.  687 

"Where  pluintitT  sets  up  l>y  am'-ndment  a  title  acquired  subsequent 
to  the  alleged  ouster,  ami  recovers  exclusively  on  that.  IK-  is  liable 
for  the  costs  of  the  suit.1  Where  the  defendant  pleaded  not  guilty T 
and  a  trial  was  had.  and  after  reversal  on  appeal  the  defendant  by 
amendment  set  up  title  only  to  a  part  of  the  land  sued  for.  and  on 
the  trial  made  irood  the  claim,  it  was  held  that  plaintili'  was  entitled 
to  costs  of  suit  up  to  the  tiling  of  the  amended  answer,  which  was 
in  effect  a  disclaimer  as  to  all  the  land  sued  for  and  not  claimed  in 
the  amended  answer.2 

A  disclaimer  may  relieve  a  party  from  liability  for  costs  incurred 
after  it  is  tiled,  but  not  for  costs  previously  incurred  if  he  was  in 
possession  when  suit  was  brought  or  set  up  claim  of  title.3  A  dis- 
claimer admits  the  plaintiffs  title  to  the  land, and, considered  alone 
in  connection  with  the  petition,  entitles  the  plaintiff  to  a  judgment 
for  the  land  and  the  defendant  to  a  judgment  for  costs.  If,  how- 
.  the  plaintiff  shows  that  the  defendant  was  in  possession  when 
the  suit  was  brought,  the  defendant  will  not  be  entitled  to  his  t 
One  of  several  defendants  disclaiming,  and  not  in  possession.  i>  en- 
titled to  costs.  Where  a  defendant  asserted  title  to  an  indefinite 
part  of  the  land  claimed,  or  included  in  a  certain  survey,  and  dis- 
claimed a>  to  the  rest,  a  judgment  for  him  for  the  land  claimed 
carried  the  costs.6  Where  the  defendant  retains  possession  of  a 

1  Schmidt  v.  Huff,  7  Civ.  App.  593  (28  S.  W.  Rep.  1053).  See  Woods  v.  Durrett. 
28  T.  429. 

-  Keyser  v.  Meusback,-??  T.  64  (13  S.  W.  Rep.  1" 

»Capt  v.  Stubbs,  68  T.  222  (4  S.  W.  Rep.  467);  Dikes  v.  Miller,  24  T.  417 
Daniel  v.  Martin.  •.'*•  s.  \V.  Kep.  1041. 

\\Vooters  v.  Hall.  117  T.  :>W  i:i  S.  W.  Rep.  T^i.  \Vh<  re  a  writ  of  sequestration 
had  issued,  <in<l  tin-  defendant  in  possession,  who  subsequently  tiled  a  disclaimer. 
executed  a  replevin  bond,  it  was  not  error  to  permit  the  plaintiff's  counsel  to 
read  in  evident---  tin-  lx>nd  in  order  to  show  that  when  the  suit  was  begun  tin- 
defendant  ass.-rted  claim  t<>  tin-  land,  and  thereby  enable  plaintiff  to  recover 
his  costs.  Capt  v.  Stubbs,  68  T  3,  W.  Rep.  467). 

'Johnson   v.   Schumacher.  T'J  T.  :W4  (12  S.  W.  Rep.  207).     In  a  suit  by  s. 
tenants  in  common  a^ain-t   another  who  did  not   disclaim  as  to  tin- 
plain  tirTs  but  pleaded  not  K'li'ty.  it  was  held  that  all  costs  up  to  the  judgment 
of  recovery  l.y  plaintiffs  of  their  interest  were  taxable  a^ain>t  the  defendant. 
Kinp  v.  Ho«-k.  ^'  T.       !          3    W.  l:--p.  -"»•.     A  tenant  in  jM.-vsession  wa>  sued  in 
trespass  to  try  title.     H-  diselaime.l.  and  his   landlords  were  made  partie-.  and 
it  was  held  that   a  judgment  for   plaintiff  property  adjudged  costs  a^'ain^t  the 
original  defendant,  notwithstan<linj;  his  di.selaim»-r.     King  v.  Halev.  1~>  '['.  \<\.', 

\V.  Rep.   i 

In  tr  try  title  and  to  cancel  patentsconHietinK  with  the  patent  under 

which  plaint itN  held,  the  defendants  disclaimed   as  to  p.irt  of  the  la: 
and  pleaded  not  guilty.     Recovery  wa>  had  of  part  of  tin    land  sued  : 
which  was  pleaded  not  guiltv.     Judgment  for  plaintiffs  for  all  the  cost-  v. 
error.    H.  &  T.  C.  Ry.  Qx  ir,  Bowie,  v  <  iv.  AI  ;  &  \V.  Rep.  304).    Se» 

Mynders  v.  liaUton.  68  T.  498  (4  S.  \V.  K.-p.  sr>4). 

•Herring  v.  Swain.  M  T.  V.':;  ,1'J  S.  \V.  Hep.  774). 


688  COSTS  OF  SUIT.  [§§  727,  728. 

part  of  the  land  disclaimed,  judgment  should  be  for  plaintiff  for  the 
land  disclaimed  with  costs.1 

§  727.  What  may  be  taxed  as  costs. 

All  taxes  imposed  on  law  proceedings  are  included  in  the  bill  of 
costs.2  Clerks  of  the  district  and  county  courts  are  allowed  no  fee 
for  motions  or  judgments  upon  motions  for  security  for  costs,  nor 
for  taking  and  approving  a  bond  for  costs.3  A  judgment  contain- 
ing several  orders  is  considered  as  one  judgment,  and  only  one  fee 
may  be  charged  by  the  court  or  clerk  for  rendering  or  entering  the 
same.4 

A  copy  of  a  paper  not  required  by  law  to  be  copied  cannot  be 
allowed  and  taxed  in  the  bill  of  costs.  If  any  party  or  attorney 
shall  take  out  copies  of  his  own  pleadings,  or  of  papers  filed  by  him 
in  any  cause,  it  will  be  at  his  own  expense;  no  charge  for  such 
copies  can  be  allowed  in  the  bill  of  costs.5  The  clerk  or  other  offi- 
cer is  not  permitted  to  charge  any  fee  for  the  examination  of  any 
paper  or  record  in  his  office.6  He  is  not  entitled  to  a  fee  for  filing 
any  process  or  paper  issued  by  him  and  returned  into  his  court.7  A 
stenographer  is  allowed  a  reasonable  compensation,  not  to  exceed 
twenty  cents  per  hundred  words,  to  be  taxed  as  a  part  of  the  bill  of 
costs.8 

£728.  Compensation  of  guardian  ad  litem. 

A  reasonable  compensation  of  a  guardian  ad  litem  may  be  taxed 
as  a  part  of  the  costs  of  the  suit.9  A  guardian  ad  litem  cannot  be 
charged  personally  with  costs  incurred  in  the  discharge  of  the  duties 
assigned  him  by  the  court.10  A  next  friend  may  be  charged  with  the 
entire  costs  of  the  suit  wThere  judgment  goes  for  the  defendant.11 

If  a  judgment  be  rendered  against  minors  represented  by  a  guard- 
ian ad  litem  it  is  proper  that  the  costs  taxed  for  the  services  of  the 
guardian,  as  other  costs,  should  be  taxed  against  the  minors  and 
collected  out  of  their  estates,  unless  there  be  some  equitable  con- 
sideration which' would  authorize  the  court  to  impose  the  costs  upon 

1  \Vilburn  v.  Tow,  23  S.  W.  Rep.  85& 

2RS.  1426. 

3  R  S.  2476.    Where  the  pauper  oath  is  filed,  the  clerk  is  required  to  issue 
process  and  perform  all  other  services  in  the  same  manner  as  if  security  for 
li;i<l  been  given.    R.  S.  1442. 

«  R  S.  2477. 

5RS.  248L 

*  R  S.  2482. 

'  R  S.  2494 

»R  S.  1296. 

»R  S.  1210.  1211. 
i°Gaines  v.  Ann,  26  T.  840. 
»  Johnson  v.  Taylor,  43  T.  12L 


COSTS  OF   SUIT.  689 

the  successful  party.1  Each  party  to  a  suit  is  made  liable  for  all 
the  costs  incurred  by  him;-  and  in  a  suit  brought  against  minors 
who  owned  no  property  from  which  costs  could  be  collected,  and 
lor  whose  defense  a  guardian  ad  litvm  had  been  appointed,  it  was 
held  (1)  That  the  costs  incurred  as  compensation  for  the  services  of 
jiianlian  <i>l  lit- m  were  the  result  of  the  suit  brought  by  the 
plaintiff,  and  after  the  return  of  nulla  bona  on  an  execution  against 
the  minors,  an  execution  could  properly  issue  against  the  plaintiff. 
_  The  plaintiff  would  not  be  liable  for  the  costs  due  the  clerk  or 
sheriff,  or  for  witness  fees  incident  to  the  minors'  defense;  these 
•were  not  Incurred  by  him.  (3)  In  the  absence  of  a  statute,  equity 
•would  in  some  cases  allow  compensation  to  a  guardian  ad  litein,  to 
be  taxed  as  costs  and  charged  to  the  successful  party  in  the  cause.1 

>'  729.  Witness  fees. 

There  will  not  be  allowed  in  any  cause  the  fees  of  more  than  two 
witnesses  to  any  one  fact.4  Witnesses  are  allowed  a  fee  of  one  dol- 
lar for  each  and  every  day  they  may  be  in  attendance  on  the  court, 
and  six  cents  for  every  mile  they  may  have  to  travel  in  going  to 
and  returning  therefrom,  which  is  paid  on  the  certificate  of  the 
clerk  by  the  party  summoning  them.  The  certificate  is  given  on 
the  affidavit  of  the  witness  before  the  clerk;  and  such  compensa- 
tion and  mileage  are  taxed  in  the  bill  of  costs,  as  other  costs.4 

1  R  S.  1435,  1428:  Ashe  v.  Young,  68  T.  123  (3  &  W.  Rep.  454). 

2  R  a  2491. 

1  Ashe  v.  Young,  68  T.  123  (3  S.  W.  Rep.  454).  Where  there  were  other  defend- 
ants joined  with  minors,  and  the  court  allowed  compensation  to  a  special  guard- 
ian appointed  to  represent  the  minors,  it  was  held  error  to  tax  such  fee  as  costs 
upon  all  the  defendants.  It  should  have  been  taxed  upon  the  property  of  the 
minors  for  whom  the  services  were  rendered.  Holloway  v.  Mdlhenny  Co.,  77 

14  S.  W.  Rep.  240).     In  Mitchell  v.  Mitchell,  80  T.  101  (15  S.  W.  Rej> 
the  ruling  was  in  accordance  with  that  in  Ashe  v.  Young,  supra,  that,  as  the 
guardian's  fee  was  incurred  at  the  instance  of  the  plaintiff,  it  should  have  been 
taxed  against  him  where  the  minor  defendant  failed  to  recover  property  out  of 
which  it  could  be  paid. 

In  a  suit  to  recover  the  sum  of  $1,773,  and  to  foreclose  a  vendor's  lien,  it  was 
held  not  an  abuse  of  discretion  to  allow  a  fee  of  $25  to  one  appointed  as  guard- 
ian <i<{  liti-m  for  minor  defendants.  Connellee  v.  Eastland,  31  S.  W.  Rep. 

*  R  a  1427;  Anderson  v.  McKimu-y.  -22  T.  653.    That  a  party  failed  to  call  on 
il  certain  witnesses  summoned  by  him  is  not  of  itself  a  sufficient  ground 
for  charging  him  with  the  costs  of  such  witnesses.    There  must  be  a  showing 
that  tin-  u  .-re  not  necessary  at  the  time  they  were  summoned.    It  fre- 

quently happens  that  certain  testimony  becomes  immaterial  by  reason  of 
unexpected  occurrence  at  the  trial    Perry  v.  Harris,  1  App.  C.  C.,  §  478.    Where 
:i  party  moves  to  retax  the  costs  on  the  ground  that  fees  of  nine  witnesses 
allowed  without  its  being  made  to  appear  that  they  were  material  to  more  than, 
one  fact,  the  burden  is  on  him  to  show  that  they  were  summoned  to  testify  to 
the  same  fact.     Marks  v.  Field*  29  a  W.  Rep.  664. 

»R  a  2208;  Anderson  v.  MeKinney,  •»  T.  653, 
44 


690  COSTS  OF  SUIT.  [§  729,-. 

The  law  allovrs  mileage  to  a  witness  from  and  to  his  residence, 
and  he  will  not  be  allowed  to  charge  for  extra  mileage  from  some 
point  other  than  his  home,  to  which  business,  duty  or  pleasure  may 
have  called  him.1 

Each  party  to  a  cause  has  a  right  to  take  the  depositions  of  wit- 
nesses, although  they  may  reside  in  the  county ; 2  but  if  it  is  shown 
that  the  purpose  of  a  party  in  resorting  to  taking  the  deposition  of 
a  witness,  and  also  examining  him  on  the  witness  stand,  was  to  op- 
press the  adverse  party  by  increasing  costs,  the  court  might  impose 
the  costs  of  the  deposition  on  the  party  in  fault;  but  such  purpose 
would  have  to  be  shown  to  the  satisfaction  of  the  court.  When  no 
purpose  to  oppress  by  increasing  needlessly  the  costs  in  a  case  is 
shown,  he  who  forces  another  to  law  cannot  complain  if  the  entire 
costs  of  perpetuating  and  bringing  before  the  court  in  the  most  en- 
during, effective  and  favorable  manner  all  the  evidence  there  is 
against  him  are  imposed  upon  him  if  judgment  shall  be  rendered  for 
his  adversary.3  It  is  the  right  and  the  duty  of  a  plaintiff  to  prepare 
his  case  for  trial,  and  the  mere  fact  that  he  has  not  used  testimony 
taken  by  him  shows  no  abuse  of  the  privilege  of  accumulating  costs, 
and  affords  no  reason  for  taxing  him  with  the  expense  of  obtaining 
the  evidence  not  used.4  A  party  cannot  recover  the  costs  of  having 
his  witnesses  summoned  every  time  the  cause  is  set  down  to  be 
called.  When  a  witness  is  summoned  in  a  suit,  it  is  made  his  duty 
to  attend  the  court  from  day  to  day  and  from  term  to  term.5 

Where  a  party  to  the  suit  becomes  a  witness,  either  in  his  own 
behalf  or  for  the  opposite  party,  he  is  not  entitled  to  witness  fees.5 
Where  a  suit  concerns  community  rights  of  a  defendant  and  his 
wife,  the  wife  is  a  party  to  the  suit,  and  the  plaintiff  is  not  liable 
for  her  fees  as  a  witness  in  the  case.  And  it  seems  that  this  would 
be  the  result  in  any  case,  as  the  fees  would  be  community  property, 

1  Marks  v.  Fields,  29  S.  W.  Rep.  664    Each  party  to  a  suit  is  responsible  to  his 
witnesses  for  the  fees  due  them  for  their  attendance.    Where  a  suit  is  dismissed 
on  account  of  the  failure  of  plaintiff  to  give  security  for  costs,  the  defendant  is 
entitled  to  a  judgment  for  costs,  and  if  witnesses  have  been  subpoenaed  by  him 
and  have  attended  court,  and  certificates  of  their  attendance  have  been  issued, 
the  fees  due  them  should  be  taxed  in  the  bill  of  costs,  for  which  execution  may 
issue.    Anderson  v.  McKinney,  22  T.  653. 

2  R.  S.  2273. 

3  G.,  C.  &  S.  F.  Ry.  Co.  v.  Evansich,  61  T.  3. 

4  Mo.  Pac.  Ry.  Co.  v.  Jarrard,  65  T.  560.    A  citizen  of  the  county  in  which  the 
suit  was  pending  was  subpoenaed  as  a  witness  in  a  cause;  before  trial  he  re- 
moved from  the  county,  and  his  deposition  was  taken.    He  then  moved  back  to 
the  county  and  attended  court  from  term  to  term  until  trial  of  the  cause,  claim- 
ing his  fees  for  attendance  as  a  witness,  which  were  properly  allowed.  Allbright 
T.  Corley,  54  T.  372. 

»  R.  S.  2267;  Marks  v.  Fields,  29  &  W.  Rep.  664 
6  Grause  v.  Edminston,  35  T.  69. 


§  730.]  COSTS  OF  SUIT.  691 

and  the  allowance  of  fees  to  the  wife  would  amount  to  an  allowance 
of  fees  to  the  defendant  himself.1 

A  witness'  affidavit,  for  the  purpose  of  proving  the  costs  to  which 
he  is  entitled,  should  fully  state  the  number  of  days  he  has  attended, 
anil  the  number  of  miles  for  which  he  is  entitled  to  charge.  The 
clerk's  certificate  of  the  attendance  of  a  witness  is  only  pri ma  facie 
evidence  against  the  party  chargeable  with  the  costs,  and  the  acts 
of  the  clerk  in  this  as  in  other  cases  are  subject  to  be  inspected  and 
corrected  by  the  court.2  The  certificate  is  not  an  adjudication  any 
more  than  the  taxing  of  costs  in  the  fee-book  would  be,  but  they 
are  both  modes  prescribed  by  law  for  the  authentication  of  a  claim, 
which  is  prima  facie  evidence  of  its  correctness  when  done,  and 
upon  which  suit  may  be  brought  against  the  party  who  summoned 
the  witness,  without  waiting  for  the  termination  of  the  suit.  If  the 
party  who  procures  the  witness  to  be  summoned  should  pay  the  cer- 
tificate, the  possession  of  it,  receipted,  would  be  evidence  of  his  right 
to  receive  the  money  when  collected  from  the  party  against  whom 
the  judgment  for  costs  is  rendered.3 

§  730.  Costs  on  motions,  exceptions  and  other  pleadings. 

On  all  motions  the  court  may  give  or  refuse  costs  at  its  discre- 
tion, except  where  it  is  otherwise  provided  by  law.  Where  a  plead- 
ing is  excepted  to,  if  the  exception  be  sustained,  all  the  costs  of  the' 
exception  and  of  the  pleading  adjudged  to  be  insufficient  are  taxed 
against  the  party  filing  such  insufficient  pleading.  If  the  exception 
is  overruled,  the  costs  are  taxed  against  the  party  taking  the  excep- 
tion.4 Where  an  exception  is  not  disposed  of  before  the  trial  begins, 
it  is  deemed  waived,  and  the  cost  of  filing  is  charged  to  the  party 
filing  it.4 

When  either  a  supplement  or  an  amendment  to  a  pleading  is  of 

iCole  v.  Angel,  29  S.  W.  Rep.  9& 

'Gause  v.  Edminston,  35  T.  69. 

s  H.  &  G.  N.  Ity.  Co.  v.  Jones,  46  T.  133.  The  amount  due  each  witness  should 
be  separately  taxed,  and  thus  carried  into  the  bill  of  costs  accompanying  the 
execution,  so  as  to  give  the  party  liable  each  item  of  costs  he  is  required  to  pay. 
If  the  fees  are  informally  taxed,  so  as  not  to  give  him  proper  notice  of  th«> 
charges  he  is  called  upon  to  pay,  or  if  he  deems  them  excessive  or  unfounded, 
he  may  make  issues  of  law  or  fact,  or  both,  thereon,  in  a  motion  to  relax  the 
costs.  This  he  might  do  at  the  return  term  of  the  execution,  even  if  he  had 
paid  the  money  to  the  sheriff.  In  such  case  it  might  be  proper  to  give  notice 
to  the  sheriff  to  retain  the  money  until  he  could  make  the  motion.  The  oppo- 
site party  would  be  the  proper  person  to  make  defense  against  this  motion:  for, 
whether  he  had  paid  the  amount  charged  to  the  witnesses  or  not,  he  would  be 
liable  for  it  to  his  witnesses,  if  it  should  be  a  just  claim.  It  seems  that  the 
proper  time  to  tax  fees  is  after  adjournment  of  court  and  before  execution  issues. 
See,  also,  Flores  v.  Thorn,  8  T.  377;  Hardy  v.  De  Leon,  7  T.  467. 

«R  a  1438-1430. 

•Rule  26. 


692  COSTS  OF  SUIT.  [§  731. 

such  a  character  and  is  presented  at  such  a  time  as  to  take  the  oppo- 
site party  by  surprise,  the  court  may  impose  the  cost  of  the  term 
and  of  a  continuance  upon  the  party  causing  the  surprise.1  No  in- 
strument of  writing,  such  as  a  deed,  will,  document,  record  of  court, 
or  agreement,  which  is  not  sued  on  as  a  cause  of  action  by  plaint- 
iff, or  set  up  as  matter  relied  on  in  defense  by  defendant,  but  is  de- 
signed to  -be  used  only  as  evidence  of  some  fact  that  is  alleged,  shall 
be  made  an  exhibit  in  the  pleading;  and  when  it  shall  be  so  at- 
tempted, by  attaching  such  instrument  and  referring  to  it  as  such, 
the  court  will,  of  its  own  motion,  or  at  the  instance  of  a  party,  cause 
the  instrument  to  be  detached  from  the  pleading,  and  adjudge  it  to 
constitute  no  part  thereof,  by  an  order  of  court  entered  of  record, 
at  the  cost  of  the  party  violating  this  rule,  so  as  to  prevent  the 
pleadings  from  being  incumbered  with  that  which  is  or  may  be  only 
evidence  in  the  case.2  The  costs  of  an  abandoned  pleading,  or  a 
pleading  in  support  of  which  no  evidence  is  offered,  are  charged  to 
the  party  filing  the  pleading.3 

§731.  Fee  books;  fee  bills;  penalty  for  taking  illegal  fees;  posting 
list  of  fees. 

Every  officer  entitled  by  law  to  charge  fees  for  services  must 
keep  a  fee  book  and  enter  therein  all  fees  charged  for  services  ren- 
dered, which  fee  book  is  at  all  times  subject  to  the  inspection  of  any 
person  wishing  to  see  the  amount  of  fees  therein  charged.  None 
of  the  fees  mentioned  in  the  title  of  the  Revised  Statutes  relating  to 

1  Rule  16.    Where  a  new  cause  of  action  is  set  up  by  an  amended  petition,  the 
effect  is  to  subject  the  plaintiff  to  all  costs  incurred  to  the  time  of  filing  the 
amendment.     Ross  v.  Kornrumpf,  64  T.  390;  Henderson  v.  Kissam,  8  T.  46;  Will- 
iams v.  Randon,  10  T.  74;  Woods  v.  Durrett,  28  T.  429;  Dailey  v.  Wynn,  33  T. 
614;  Irvine  v.  Town  of  Bastrop,  32  T.  485.    The  imposition  of  terms  upon  tho 
allowance  of  amendments  rests  somewhat  in  the  discretion  of  the  court;  but 
when,  after  large  bills  of  costs  have  been  incurred  in  a  case,  an  entirely  new 
cause  of  action  is  brought  to  the  attention  of  the  court,  the  party  presenting  it 
should  be  required  to  pay  the  costs  previously  accrued.     But  after  the  other 
party  has  answered  to  the  merits  of  such  new  cause  of  action,  it  is  too  late  for 
him  to  object  that  such  terms  were  not  imposed.    Dailey  v.  Wynn,  33  T.  614; 
Woods  v.  Durrett,  28  T.  429. 

It  was  not  error,  on  recovery  by  plaintiff  in  an  action  for  money  misappropri- 
ated, to  tax  the  entire  cost  against  the  defendants,  although  an  amendment  had 
been  made  by  the  plaintiff  whereby  different  testimony  would  be  required  to 
support  the  demand  sued  upon,  the  amendment  alleging  the  same  transaction 
as  the  basis  of  the  liability  of  defendants.  Cotter  v.  Parks,  80  T.  539  (16  S.  W. 
Rep.  307).  It  is  proper  to  tax  the  costs  to  the  party  amending  where  the  amend- 
ment introduces  new  parties.  Lanes  v.  Squyres,  45  T.  383.  If  a  party  through 
ignorance  or  carelessness  joins  unnecessary  parties,  he  should  be  taxed  with  all 
costs  up  to  the  time  of  amendment.  Andrus  v.  Pettus,  36  T.  108;  Johnson  v. 
Davis,  7  T.  173;  Beale  v.  Ryan,  40  T.  399;  Clegg  v.  Darnell,  18  T.  294. 

2  Rule  19. 
a  Rule  33. 


§  732.]  ,'    006T8   OF   SUIT.  693 

fees  are  payable  by  any  person  whomsoever  until  there  be  produced, 
or  ready  t«.  !><•  produced,  to  the  person  owing  or  chargeable  with 
the  same,  a  bill  or  account  in  writing  containing  the  particulars  of 
such  fees,  signed  by  the  clerk  or  officer  to  whom  such  fees  are  due, 
or  by  whom  the  same  are  charged,  or  by  the  successor  in  office 
or  legal  representative  of  such  clerk  or  officer.1  If  any  officer 
named  in  such  title  shall  demand  and  receive  any  higher  fees  than 
are  prescribed  to  them  therein,  or  any  fees  that  are  not  allowed  by 
such  title,  such  officer  shall  be  liable  to  the  party  aggrieved  for  four- 
fold the  fees  so  unlawfully  demanded  and  received  by  him,  t<>  l><» 
recovered  in  any  court  of  competent  jurisdiction;  and  may  also  be 
punished  criminally  for  extortion,  as  prescribed  in  the  Penal  Code.2 
It  is  the  duty  of  county  judges,  clerks  of  the  district  and  county 
courts,  sheriffs,  justices  of  the  peace,  constables  and  notaries  public, 
of  the  several  counties,  to  keep  posted  up  at  all  times  in  a  conspicu- 
ous place  in  their  respective  offices  a  complete  list  of  the  fees  allowed 
by  law  to  be  charged  by  them  respectively.1 

§  732.  Pees  of  clerks  of  district  courts. 

The  clerk  of  the  district  court  is  allowed  the  following  fees:4 
For  copy  of  petition,  including  certificate  and  seal,  each  one 

hundred  words $0  20 

Each  writ  of  citation 75 

Each  copy  of  writ  of  citation 5 7  . 

Docketing  each  cause,  to  be  charged  but  once ,  •_'  > 

Docketing  each  rule  or  motion 1 ."» 

Filing  each  paper 15 

Entering  appearance  of  each  party  to  a  suit,  to  be  charged 

but  once 15 

Each  continuance _'  ' 

Swearing  each  witness 10 

Administering  an  oath,  or  affirmation,  with  certificate  and 

seal 50 

Each  subpoena  issued 

Each  additional  name  inserted  in  each  subpoena 1.". 

Approving  bond,  except  bond  for  costs 1  5o 

Swearing  and  impaneling  a  jury 35 

Receiving  and  recording  verdict  of  a  jury 35 

1  The  fees  of  each  witness  should  be  entered  in  the  officer's  fee  book  aa  a  sepa- 
rate item  of  costs,  stating  the  name  of  the  witness,  at  whose  instance  summoned, 
the  number  of  clays  he  attended,  and  the  amount  to  which  he  is  entitled.  The 
bill  of  costs  should  be  made  out  from  this  fee  book,  and  the  law  .-..iiti-nip!  it«-s 
that  the  bill  must  show  distinctly  each  item  of  the  costs  separately  and  not  in 
the  aggregate.  Perry  v.  Harris,  1  App.  C.  C..  «5  479. 

J  This  article  does  not  apply  to  fee    prescribed  by  other  titles  of  the  statute. 
Wood  County  v.  Gate,  75  T.  215,  219  (12  S.  W.  Rep.  585,  538). 
'  »R&  2483-2486. 

*  Acts  1893,  p.  170;  R  a  2453. 

*  This  is  a  new  provision,  and  changes  the  rule  in  Hallman  v.  Campbell,  57  T. 
54 


694  COSTS  OF  SUIT.  [§  732. 

Assessing  damages  in  each  case  not  tried  by  a  jury $0  50 

Each  commission  to  take  depositions 75 

Taking  depositions,  each  one  hundred  words 15 

Each  order,  judgment,  or  decree 75 

Where  the  judgment  or  decree  exceeds  two  hundred  words 
the  additional  fee  for  each  one  hundred  words  in  excess  of 

two  hundred  words  shall  be 15 

Each  execution,  order  of  sale,  writ  of  possession,  restitution, 

or  other  writ  not  otherwise  provided  for 75 

Recording  return  of  any  writ,  when  such  return  is  required 

by  law  to  be  recorded 75 

Each  certificate  to  any  facts  contained  in  the  records  of  his 

office 75 

Making  out  and  transmitting  the  records  and  proceedings  in 

a  cause  to  an  inferior  court,  for  each  one  hundred  words. .  20 
Making  out  and  transmitting  the  mandate  or  judgment  of 

the  district  court  upon  appeal  from  the  county  court 1  00 

Filing  a  record  in  a  cause  appealed  to  the  district  court ....         50 
Transcribing,  comparing  and  verifying  record  books  of  his 
office,  payable  out  of  the  county  treasury,  upon  warrants 
issued  under  order  of  the  commissioners'  court,  each  one 

hundred  Avords 10 

Making  transcript  of  the  records  and  papers  in  any  cause 
upon  appeal,  or  writ  of  error,  with  certificate  and  seal,  each 

one  hundred  words ^    20 

Making  a  copy  of  all  records  of  judgments,  or  papers,  on  file 
in  his  office  for  any  party  applying  for  same,  with  certifi- 
cate and  seal,  each  one  hundred  words 20 

Issuing  a  writ  of  scire  facias  and  making  copy  of  same 1  00 

Taxing  the  bill  of  costs  in  each  cause,  with  a  copy  of  same. .         25 
Issuing  each  license  to  an  attorney,  and  recording  the  pro- 
ceedings thereon 5  00 

Filing  and  recording  the  declaration  of  intention  to  become 

a  citizen  of  the  United  States 2  00 

Issuing  certificate  of  naturalization 2  50 

Where  by  agreement  of  parties  one  order  is  to  apply  to  a  num- 
ber of  cases,  and  but  one  order  is  entered  upon  the  minutes  of  the 
court,  the  clerk  is  entitled  to  a  fee  for  only  the  one  order.  While 
entries  may  properly  have  been  entered  in  several  cases,  yet  if  act- 
ually entered  but  in  one  case  the  clerk  is  entitled  to  the  fee  only 
for  the  judgment  entry  made.  Where  the  venue  is  changed  in  a 
number  of  cases,  and  the  order  for  the  change  is  included  in  one 
entry  upon  the  minutes,  and  in  the  transfer  of  the  cases  the  clerk 
makes  out  a  copy  of  the  entries  affecting  each  case,  with  proper  cer- 
tificate, he  is  entitled  to  a  fee  for  the  certified  copy  and  certificate 
in  each  case.  One  doing  the  labor  for  which  fees  are  allowed  to 
an  officer  is  not  therefore  entitled  to  the  fees  of  the  officer,  but 
only  to  reasonable  compensation  for  the  labor  done.1 

i  Hanrick  v.  Ake,  75  T.  142  (12  S.  W.  Rep.  818). 


:3,  734.]  IT.  695 

53.  Fees  of  county  judge. 

For  each  civil  cause  finally  disposed  of  by  the  county  judge,  by 

trial  or  otherwise,  lie  is  entitled  to  a  fee  of  three  dollars,  to  be 

I  airainst  the  party  cast  in  the  suit.     If  the  party  cast  in  the 

suit  has  filed  his  oath  of  inability  to  pay  costs  during  the  progress 

of  the  cause,  or  is  unable  to  pay  costs,  the  county  judge  must  be 

allowed  by  the  county  commissioners'  court  such  compensation  as 

may  deem  proper  not  to  exceed  three  dollars  for  each  state 

7  34.  Pees  of  clerks  of  county  courts. 
rks  of  the  county  court  are  allowed  the  following  fees:2 

Filing  each  paper $0  05 

I>suing  notices,  including  copies  for  posting  or  publication.  . .        H 
Docketing  each  application,  complaint,  petition  or  proceed- 
ing, to  oe  charged  but  once 10 

i  writ  or  citation,  including  copy  thereof 50 

.  copy  of  any  paper  that  is  required  to  accompany  any 
writ   or  citation,   with   certificate  and  seal,  for  each  one 

hundred  words 10 

Issuing  letters  testamentary,  of  administration  or  guardian- 
ship   .* 

Kaeh  judgment  or  decree 50 

When  a  judgment  or  decree  exceeds  two  hundred  words,  an 
additional  fee  for  each  one  hundred  words  in  excess  of  two 

hundred  of 10 

Recording  all  papers  required  to  be  recorded  by  them  in  rela- 
tion to  estates  of  decedents  or  wards,  for  each  one  hun- 

divd  words  10 

Administering  oath  to  executor,  administrator  or  guardian. .       10 
Administering  oath  or  affirmation  in  other  cases,  without  cer- 
tificate and  seal  1  ~> 

Administering  oath  or  affirmation  with  a  certificate  and  seal       25 
Entering  each  order  of  the  court  approving -or  disapproving 

a  claim  against  an  estate 

filing  each  paper,  except  subpoenas o"> 

Kach  appearance,  to  becharged  but  once 1" 

Entering  each  continuance,  except  in  estates 10 

Kaeh  sulipu-na 

Kach  additional  name  inserted  in  each  subpoena 1" 

Approving  bond,  except  bond  for  costs 1  <»<» 

i  ring  each  witness 10 

Swearing  and  impaneling  a  jury  •_'."> 

K'  <  eivingand  recording  a  verdict •_'."> 

A  —  •— :!ii:  damages  in  each  case  not  tried  by  a  jury 

Kach  commission  to  take  depositions 50 

Takinir  depositions  each  one  hundred  words l.~> 

Kach  execution,  order  of  sale,  writ  of  po>«.,-xMon,  restitution  or 
other  writ  not  otherwise  provided  for 50 

1  R  S.  2449. 

2  R.  S.  2457.    Other  fees  are  allowed  for  services  not  pertaining  to  a  suit. 


696  COSTS  OF  SUIT.  [§  735^. 

Recording  return  on  any  writ  where  such  return  is  required 

by  law  to  be  recorded $050 

Copies  of  interrogatories,  cross-interrogatories  and  all  other 
papers  or  records  required  to  be  copied  by  him,  including 
certificate  and  seal,  each  one  hundred  words,  when  not 

otherwise  provided  for 15 

Transcript  in  any  case  where  appeal  or  writ  of  error  is  taken, 

with  certificate  and  seal,  eacn  one  hundred  words 15 

Each  certificate  to  any  fact  or  facts  contained  in  the  records 
of  his  office,  with  certificate  and  seal,  when  not  otherwise 

provided  for 50 

Taxing  bill  of  costs  in  each  cause,  with  a  copy  thereof 25 

There  is  a  provision  of  the  statute  authorizing  the  clerk  to 
charge  in  advance  for  filing  or  recording  an  instrument  permitted 
or  required  by  law  to  be  recorded,  but  it  does  not  include  papers  or 
instruments  filed  or  recorded  in  suits  pending  in  the  county  court.1 
For  recording  attachments  and  returns,  under  the  act  of  1889, 
the  clerk  may  charge  the  fee  allowed  for  recording  deeds,  to  be 
paid  by  the  plaintiff,  and  taxed  as  a  part  of  the  costs  in  the  case  in 
which  the  attachment  issued  and  paid  and  collected  as  other  costs.2 

§  735.  Fees  of  sheriffs  and  constables. 
Sheriffs  are  allowed  the  following  fees: 

Serving  each  original  citation  in  a  civil  suit $1  50 

Summoning  each  witness  ...    50 

Levying  and  returning  each  writ  of  attachment  or  sequestra- 
tion    2  50 

Serving  each  writ  of  garnishment,  injunction  or  other  pro- 
cess not  otherwise  provided  for 1  00 

Taking  and  approving  each  bond,  and  returning  the  same  to 

the  proper  court,  when  necessary 1  00 

Indorsing  the  forfeiture  of  any  bond  required  to  be  indorsed 

by  him 50 

Levying  each  execution 1  50 

Returning  each  execution 75 

Executing  and  returning  each  writ  of  possession  or  restitu- 
tion    3  00' 

Posting  the  advertisements  for  sale  under  execution,  or  any 
order  of  sale 1  00 

Posting  any  other  notices  required  by  law  not  otherwise 
provided  for 1  00 

Executing  a  deed  to  each  purchaser  of  re?.!  estate  under  an 

execution  or  order  of  sale 2  00 

Executing  a  bill  of  sale  to  each  purchaser  of  personal  prop- 
erty under  an  execution  or  order  of  sale,  wnen  demanded 
by  the  purchaser 1  00 

For  each  cause  tried  in  the  district  or  county  court  a  jury  fee 

shall  be  taxed  for  the  sheriff  of ". 50^ 

For  services  in  designating  a  homestead 2  00- 

l  R  S.  2459. 
*  R.  S.  4669. 


§  736.]  COSTS   OF   SLIT.  697 

For  traveling  in  the  service  of  any  civil  process  sheriffs  and  con- 
st aMes  shall  receive  five  cents  for  each  mile,  going  and  coming;  if 
two  or  more  persons  are  mentioned  in  the  writ,  he  shall  charge  for 
tin-  distance  actually  and  necessarily  traveled  in  the  service  of  the- 
same.  Collecting  money  on  an  execution  or  an  order  of  sale,  when 
the  same  is  made  by  a  sale,  for  the  first  one  hundred  dollars  or  less, 
four  per  cent.;  for  the  second  one  hundred  dollars,  three  per  cent.; 
for  all  sums  over  two  hundred  dollars,  two  per  cent.  When  the 
money  is  collected  by  the  sheriff  without  a  sale,  one-half  of  the 
above  rates  shall  be  allowed  him.1 

Whenever  an  attachment  is  levied  upon  real  estate,  the  officer 
levying  the  writ  must  immediately  file  with  the  county  clerk  of  the 
county  or  counties  in  which  the  real  estate  is  situated  a  copy  of 
the  writ,  together  with  a  copy  of  so  much  of  his  return  as  relates 
to  the  land  in  said  county.  For  such  service  he  may  charge  a  fee 
of  one  dollar,  to  be  taxed  and  collected  as  other  costs  in  the  suit.* 

Constables,  for  all  services  performed  by  them  in  business  con- 
nected with  the  district  and  county  courts,  are  entitled  to  the  fees, 
allowed  sheriffs  for  the  same  services.3 

A  sheriff,  charging  for  service  of  process,  can  only  rightfully 
charge  for  the  distance  actually  traveled  in  any  case;  but  he  is  en- 
titled to  charge  the  amount  specified  in  the  statute  for  each  writ,, 
though  he  may  serve  a  number  in  making  one  trip.  When  two  or 
more  persons  are  mentioned  in  the  same  writ,  he  can  charge  for 
but  one  mileage.  The  fact  that  the  sheriff,  in  executing  process, 
may  go  in  person  a  portion  of  the  way  towards  the  witness  he  is 
required  to  summon,  and,  before  reaching  him,  may  deliver  the 
process  to  a  deputy,  by  whom  it  is  served  and  returned  by  mail,, 
will  not  affect  the  right  of  the  sheriff  to  charge  mileage  for  his  re- 
turn trip.4 

§  736.  Relaxing  costs. 

When  costs  have  been  improperly  taxed,  the  proper  practice  is 
for  the  party  aggrieved  to  call,  in  some  manner,  the  attention  of 
the  court  to  the  matter,  and  demand  of  the  clerk,  after  the  judg- 
ment is  entered,  a  bill  of  costs,  duly  itemized,  and  taxod  by  him  as 
the  law  authorizes.  The  party  can  then  move  to  have  costs  re- 
laxed, setting  forth  the  proper  items  of  costs,  or  he  can  move  to 
strike  from  the  bill  the  objectionable  items.  Unless  some  such  pro- 
ceeding is  had  below,  the  appellate  court  will  not  afford  relief,  when 
applied  for  on  appeal  for  the  first  time.5  Where  a  mistake  is  made 

» R  a  2460. 

*  R  a  4869. 

>  R  S.  2465. 

« <!..  C.  &  S.  F.  Ry.  Co.  v.  Dawson.  69  T.  519  (7  S.  W.  Rep.  63X 

»  Allen  v.  Woodson,  60  T.  651;  Castro  v.  lilies,  11  T.  89;  Morgan  v.  Haldeman,. 


698  COSTS   OF   SDIT.  [§  736. 

in  taxing  costs,  upon  a  proper  motion  the  return  of  the  sheriff  can 
be  set  aside  and  the  costs  retaxed ;  but  when  a  judgment  has  been 
satisfied,  a  party  cannot  claim  that  costs  due  him  were  not  taxed, 
and  ask  that  the  judgment  be  remodeled  and  re-entered;  he  cer- 
tainly cannot  do  so  if  he  was  not  a  party  to  the  original  suit  and 
there  was  no  evidence  on  the  record  to  show  a  mistake.1  The  ad- 
verse party  must  have  notice  of  the  proceeding.2 

The  presumption  is  in  favor  of  the  correctness  of  an  execution 
for  costs,  where  the  costs  have  been  taxed  by  the  proper  and  sworn 
officer  for  this  purpose;  and  where  a  motion  to  retax  is  dismissed 
for  want  of  prosecution,  it  does  not  devolve  upon  the  court  to  ex- 
amine the  several  items  to  see  whether  in  fact  they  are  correct.3 
An  injunction  proceeding  to  enjoin  the  collection  of  costs,  on  the 
ground  that  some  of  the  items  are  illegal,  should  be  treated  as  a 
motion  to  retax.  It  is  error  to  enjoin  those  items  against  which 
there  is  no  complaint.  It  is  the  duty  of  the  court  to  retax  the  costs; 
it  should  not  appoint  an  auditor;  and  the  allowance  of  damages 
and  interest  on  the  costs  is  error.4  In  such  a  proceeding  against 
the  plaintiff  in  execution  the  clerk  of  the  court  is  not  a  necessary 
party,  and  if  he  is  joined,  and  dies  pending  the  proceeding,  his  heirs 
need  not  be  brought  in.5 

•20  T.  58;  Stewart  v.  Crosby,  15  T.  513;  Farquhar  v.  Hendley,  24  T.  300;  Wiebusch 
v.  Taylor,  64  T.  53.  When  the  court  adjudges  the  cost  of  a  motion  to  retax  costs 
-against  the  party  who  files  it,  and  who  on  his  motion  for  rehearing  did  not  ex- 
cept to  the  action  of  the  court  adjudging  the  cost  of  the  motion  against  him,  it 
is  too  late  to  raise  the  question  on  error.  Allbright  v.  Corley,  54  T.  372. 

1  Gaines  v.  Mensing,  64  T.  325.    Where  a  motion  is  made  to  retax  because  the 
fees  of  several  witnesses  are  put  into  one  general  charge,  the  burden  is  on  the 
-adverse  party  to  show  the  particulars  of  the  charge  and  establish  its  legality  and 
correctness.    Perry  v.  Harris,  1  App.  C.  C.,  §  479. 

2  Gage  v.  Page.  10  T.  365. 

3  Lockhart  v.  Lytle,  51  T.  601. 

4  Lockhart  v.  Stuckler,  49  T.  765.    A  judgment  final  by  default  cannot  be  ren- 
dered in  an  injunction  suit  to  restrain  an  execution  for  costs,  on  the  ground 
that  the  costs  have  been  erroneously  taxed;  there  must  be  an  interlocutory  order 
for  retaxation  of  the  costs,  after  which  the  injunction  may  be  perpetuated  as 
•to  the  excess.    Charlton  v.  Raguet,  6  T.  529. 

5  Lockhart  v.  Lytle,  51  T.  601. 


CHAPTER  L. 

COSTS  IN  THE  APPELLATE  COURTS. 


r.  In  general. 

738.  In  courts  of  civil  appeals. 

739.  Appellant  liable  for,  when. 
74<».  Appellee  liable,  when. 
741.  Revision  of  errors. 

.'.  Execution  for  costs;  duty  of  of- 
ficer. 


§  743.  Fees  of  clerk  of  supreme  court. 
?  14.  Fees  of  clerks  of  courts  of  civil 

appeals. 
745.  Report  by  clerks  of  courts  of 

civil  appeals. 


737.  In  general. 

It  is  said  that  costs  do  not  necessarily  follow  the  judgment  of  the 
appellate  court,  but  that  they  may  be  adjudged  and  apportioned 
according  to  the  equity  of  the  case.1  Generally,  it  seems,  where  an 
appeal  is  necessary  to  correct  some  error,  without  any  default, 
omission  or  neglect  on  the  part  of  the  appellant,  the  costs,  if  the, 
-ion  is  in  his  favor,  will  be  adjudged  against  the  appellee;2  as 
in  case  of  an  excessive  judgment,  and  a  remittitur  is  not  en: 
until  after  the  appeal  is  taken.3  Each  party  is  primarily  liable  for 
the  costs  made  by  him,  and  the  collection  of  the  costs  of  an  appeal 
•will  not  be  enjoined  though  the  party  has  been  successful  in  his 
appeal.4 

Where  a  judgment  in  favor  of  a  party  is  reversed  on  appeal,  and 
he  succeeds  on  a  second  trial,  he  is  not  entitled  to  recover  the  costs 
of  the  appeal  from  the  first  judgment.5  A  judgment  in  a  county 
court  adjudging  costs,  in  a  case  which  had  been  appealed  to  the 
court  of  appeals,  did  not  and  could  not  include  costs  adjudged  in 
such  appeal  by  the  court  of  appeals.  The  county  court  had  no 
control  over  such  costs.6 

Where  the  transcript  of  the  record  is  destroyed  pending  an  ap- 
peal, the  fees  of  the  clerk  of  the  lower  court  for  making  another 
are  properly  rharired  as  a  part  of  the  costs  of  the  appeal,  to  abide 
the  decision  of  the  court.  In  reply. to  the  argument  that  cost 

1  Fowler  v.  Merrill.  8  T.  153. 

-  \Vestall  v.  Marshall.  16  T.  182;  Hill  v.  McDermott,  Dallam,  41!t. 

»  Pearce  v.  Tootle,  75  T.  148(12S.W.  Rep.  538);  Fry  v.  Longstn-.  t .  1  App.CC, 
§  48;  Nicholson  v.  Ende,  1  A  pp.  C.  C.,  §  496;  Reed  v.  Herring,  37  T.  160.  See 
REMITTITUR. 

»  M..ore  v.  Moore.  8  S.  W.  Rep.  28. 

»Sabine  &  E.  T.  Ry.  Co.  v.  Jolm^.n.  7  S.  W.  Rep.  37& 

•  Hines  T.  Holland,  3  App.  C.  C.,  §  100;  Farquhar  v.  Hendley,  24  T.  300, 


700  COSTS   IN   THE   APPELLATE   COURTS.  [§§  738,  739^ 

only  recoverable  by  force  of  the  written  law,  and  that  the  statute 
only  provides  for  the  cost  of  one  transcript,  the  court  say :  "  The 
same  may  be  said  in  reference  to  the  provisions  for  costs  for  other 
services  of  the  clerk.  He  is  allowed  a  fee  for  a  citation,  and  a  fee 
for  issuing  an  execution.  Nothing  is  said  of  any  charge  for  an  alias 
or  pluries  writ  of  either  character,  and  yet  it  cannot  be  doubted 
that  when  a  second  or  third  writ  is  necessary  he  is  allowed  to 
charge  for  it  in  the  same  manner  as  for  the  original."  * 

£  738.  Costs  in  courts  of  civil  appeals. 

In  any  cause  reversed  by  a  court  of  civil  appeals  the  appellant  is 
•entitled  to  an  execution  against  the  appellee  for  costs  occasioned  by 
the  appeal,  including  costs  for  the  transcript,  such  costs  to  be  taxed 
by  the  clerk  of  the  court.2  Unless  reasons  appear  to  vary  the  rule,, 
the  party  applying  for  a  certiorari  to  perfect  the  record  will  be 
taxed  with  the  costs.3  The  cost  of  making  a  proper  index  to  the 
transcript,  when  it  does  not  conform  to  the  requirements  of  rule  92 
of  district  court  rules,  may  be  taxed  against  the  appellant  or  plaint- 
iff in  error.* 

§  739.  Appellant  liable  for  costs,  when. 

The  costs  occasioned  by  the  introduction  of  unnecessary  matter 
in  the  transcript,  or  by  useless  repetition,  will  be  charged  to  the 
appellant,  if  a  proper  motion  be  made.5  When  a  judgment  appealed 
from  can  properly  be  reformed  and  rendered,  and  the  appellant 
could,  upon  proper  notice,  have  had  the  judgment  corrected  in  the 
court  below,  and  thus  have  rendered  an  appeal  unnecessary,  he  will 
be  taxed  with  the  costs  of  appeal  in  addition  to  the  costs  adjudged 
against  him  below.6 

i  Moore  v.  Bayne,  75  T.  665  (12  S.  W.  Rep.  850). 

2R.  S.  1029.  Costs  of  the  transcript  from  the  county  court  are  properly  taxed 
under  this  article.  Baker  v.  Guinn,  25  S.  W.  Rep.  141.  The  lower  court  properly 
refused  to  tax  as  an  item  of  costs  incurred  on  a  previous  appeal  of  this  case  the 
amount  paid  by  the  appellant  for  the  printing  of  his  brief.  Ward  v.  Worsham, 
6  Civ.  App.  22  (24  S.  W.  Rep.  843). 

3  Rule  11  of  Courts  of  Civil  Appeals. 

4  Rule  7a  of  Courts  of  Civil  Appeals. 

5 Blum  v.  Davis,  56  T.  423;  Chambers  v.  Fisk,  22  T.  504;  Galveston  Ins.  Co.  v. 
Long,  51  T.  89;  McNeil  v.  Moore,  7  Civ.  App.  536;  Rider  v.  Hunt,  6  Civ.  App.  238 
(25  S.  W.  Rep.  314). 

6  Helm  v.  Weaver,  69  T.  143  (6  S.  W.  Rep.  420).  Where  a  judgment  is  errone- 
ously entered  against  one  of  two  defendants,  in  an  action  on  a  note,  and  on  ap- 
peal by  such  wronged  defendant  judgment  is  rendered  against  both,  the  costs 
of  the  appeal  will  be  adjudged  against  the  other  defendant.  Brown  v.  Keye,  25 
S.  W.  Rep.  988.  Where  an  error  in  allowing  interest  was  not  called  to  the  atten- 
tion of  the  court  below,  the  costs  of  appeal  were  adjudged  against  the  success- 
ful appellants.  Chapman  v.  Bolton,  25  S.  W.  Rep.  1001.  Where  a  motion  for 
new  trial  to  correct  an  erroneous  charge  is  not  made  by  plaintiffs,  the  costs  of 
writ  of  error  will  be  taxed  against  them.  McDaniel  v.  Martin,  25  S.  W.  Rep. 


§   740.]  COSTS    IN    MIK    Al'1'KI.I.ATE   COURTS.  701 

?  740.  Appellee  liable  for  costs,  when. 

An  appellee  is  permitted  to  tile  crdss-assignments  of  error,1  and 
procure  a  iwision  of  the  judgment  on  the  matters  complained  of 
by  him,-'  and  if  he  appeals  or  prosecutes  a  writ  of 'error,  the  costs 
thereby  incurred  will  be  taxed  against  him.8  But  where  a  defend- 
ant desires  relief  as  against  his  co-defendants,  he  must  appeal,  not- 
withstanding an  appeal  has  been  perfected  by  the  adverse  party.4 

Where  on  appeal  to  a  court  of  civil  appeals  the  judgment  below 

is  reversed  and  judgment  rendered  not  for  the  same  amount  nor  of 

the  same  nature,  it  is  error  to  impose  costs  of  the  appeal  upon  the 

appellant  and  the  sureties  upon  the  appeal  bond.     The  judgment 

•t  such  as  is  contemplated  by  the  statute.5 

Where  the  district  court  reverses  a  justice's  judgment  in  favor 
of  plaintiff,  and  he  appeals,  and  obtains  a  judgment  for  more  than 
was  allowed  him  by  the  justice,  he  is  entitled  to  recover  the  costs 
of  both  appeals.6  Where  an  appellant  in  a  motion  for  a  new  trial 

l"4l.  Where  an  error  occurs  in  entering  the  judgment  below,  insignificant  in 
amount,  and  no  steps  are  taken  to  have  it  corrected,  costs  will  not  be  allowed 
on  appeal  upon  the  correction.  Lee  v.  Welborne,  71  T.  500  (9  S.  W.  Rep.  471). 

Where  judgment  is  manifestly  excessive,  and  no  mention  is  made  of  the  ex- 
cess in  the  motion  for  a  new  trial,  nor  any  charge  to  the  jury  asked  touching 
the  matter,  and  where  there  is  a  remittitur  entered  in  the  appellate  court,  the 
judgment  will  be  reformed  at  costs  of  appellant  Mayer  v.  Duke,  72  T.  445  (10 
S.  W.  Rep.  565).  Where  the  statement  of  facts  shows  an  error  in  the  amount 
charged  to  one  of  the  parties,  it  can  be  corrected  on  appeal;  but  when  no  atten- 
tion was  paid  to  it  in  the  motion  for  new  trial  or  otherwise  in  the  court  below, 
the  costs  of  the  appeal  will  not  be  taxed  upon  the  appellee.  Haley  v.  Gatewood. 
74  T.  281  (12  a  W.  Rep.  25);  Montrose  v.  Fannin  County  Bank,  23  S.  W.  Rep.  709. 

On  appeal  to  the  district  court  from  a  justice  of  the  peace  plaintiff  recovered 
a  smaller  judgment,  but  the  district  court,  whose  attention  was  not  called 
thereto,  inadvertently  failed  to  decree  costs  against  plaintiff,  as  required  in  such 
cases  by  Revised  Statutes,  article  1436  (§  722,  supra).  On  error  by  defendant 
from  the  district  court  it  was  held  that  the  judgment  would  be  thus  modified, 
l>ut  the  costs  of  the  writ  taxed  against  defendant  Sullivan  v.  Kindred,  20 
Rep.  150. 

1  Rule  101,  for  D.  &  C.  Courts. 

2  Duren  v.  Railway  Co.,  86  T.  287  (24  S.  W.  Rep.  258). 
»Caperton  v.  Wanalow,  IS  T.  125;  Carroll  v.  Carroll,  20  T.  731. 
«  La  Vega  v.  League.  2  Civ.  App.  252  (21  S.  W.  Rep.  565). 

5 Connor  v.  City  of  Paris,  87  T.  32  (27  S.  W.  Rep.  88).    This  suit  was  brought 
1>y  the  city  to  foreclose  a  lien  for  the  first  instalment  of  a  special  assessment 
against  a  city  lot,  and  for  the  first  year's  interest    The  assessment  was  p;t 
in  ten  instalments.    The  district  court  entered  judgment  foreclosing  th 
for  all  the  assessments,  and  the  court  of  civil  appeals  reformed  the  jn.k'mrnt 
ami  entered  a  judgment  foreclosing  the  lien  for  the  first  assessment  an- 1  «.n.« 
year's  interest  on  the  whole  amount,  with  an  order  to  sell  the  lot  suhj. ,  t  t«.  the 
in-talments.    This  was  not  a  judgment  for  the  same  amount  nor  of  the 
nature  as  specified  in  the  statute.    R.  S.  1028. 

6 Bailey  v.  Oliver,  9  S.  W.  Rep.  606.  Where  appellant  defendant  below,  in- 
effectually calls  the  trial  court's  attention  to  an  erroneous  allowance  of  inter- 
•  -;  in  the  judgment  against  him,  costs  will  be  taxed  against  the  appellee  though 


702  COSTS   IN   THE   APPELLATE   CODKTS.  [§§  741,  742- 

calls  the  attention  of  the  court  to  a  defect  in  the  judgment  by  rea- 
son of  which  it  is  not  final,  the  costs  of  an  appeal  will  be  adjudged 
against  the  appellee.1  On  two  successive  appeals  to  the  court  of 
appeals,  the  first  from  a  judgment  by  default,  and  the  second  from 
an  excessive  judgment,  it  was  held  that  as  appellee  was  in  the  wrong 
in  both  instances,  he  was  properly  charged  with  all  the  costs  of  the 
appeals,  including  the  clerk's  fees  in  the  lower  court  for  making 
out  the  transcripts.2 

§  741.  Revision  of  errors. 

An  error  by  the  trial  court  in  awarding  costs  must  be  brought 
to  the  attention  of  that  court  for  correction,  and  must  be  assigned 
as  error  on  appeal.3  The  proper  proceeding  is  by  a  motion  to  retax 
the  costs,  or  to  strike  out  the  objectionable  items.4  The  failure  of 
the  trial  court  to  tax  the  costs  of  an  amended  pleading  properly 
will  not  be  revised  on  appeal  when  no  objection  was  made  in  the 
district  court.5  An  objection  that  the  judgment  is  against  only 
some  of  the  defendants  for  costs,  and  not  also  against  a  co-defend- 
ant, should  be  primarily  made  in  the  trial  court,  and  presented  on 
appeal  by  proper  assignments ; 8  or  that  too  large  a  part  of  the  costs 
has  been  adjudged  against  a  party.7 

§742.  Execution  for  costs;  duty  of  sheriff  or  constable. 

When  no  motion  for  a  rehearing  is  filed  the  judgments  of  the 
supreme  court  become  final  after  fifteen  days;  and  upon  the  rendi- 
tion of  final  judgment  the  clerk  issues  the  mandate,  provided  the 
costs  have  been  paid.8  But  the  mandate  will  not  be  issued  until 
the  costs  of  the  supreme  court  and  of  the  court  of  civil  appeals- 
have  been  paid.9  Where  no  writ  of  error  is  taken  from  a  judgment 
of  a  court  of  civil  appeals  and  no  motion  for  a  rehearing  is  filed 
within  thirty  days  after  the  decision  or  conclusion  has  been  entered, 

the  judgment  itself  is  corrected  and  affirmed.  Petri  v.  Neimeyer,  26  S.  W.  Rep. 
266. 

1  Burch  v.  Burch,  26  S.  W.  Rep.  828. 

2  L  &  G.  N.  Ry.  Co.  v.  Saul,  2  App.  C.  C.,  §  716. 

» Harris  v.  Cattle  Co.,  84  T.  674  (19  S.  W.  Rep.  869);  Jones  v.  Ford,  60  T.  127; 
Wiebusch  v.  Taylor,  64  T.  53;  Bridges  v.  Samuelson,  73  T.  522  (11  S.  W.  Rep.  539); 
Allen  v.  Woodson,  60  T.  651. 

4  Allen  v.  Woodson,  60  T.  651;  Morgan  v.  Haldeman,  20  T.  58;  Stewart  v. 
Crosby,  15  T.  513;  Castro  v.  lilies,  11  T.  39. 

*  Dalton  v.  Rainey,  75  T.  516  (13  S.  W.  Rep.  34). 

6  Hill  v.  Smith,  6  Civ.  App.  312  (25  S.  W.  Rep.  1079). 

•"Torrey  v.  Martin,  4  S.  W.  Rep.  642. 

8R,  S.  976. 

9  R.  S.  984.  On  an  application  for  a  mandamus  to  compel  the  clerk  to  issue 
the  mandate,  it  was  held  that  he  might  withhold  the  mandate  until  the  costs 
were  paid,  notwithstanding  the  party  finally  cast  had  prosecuted  in  forma  pau- 
$eri8,  he  not  being  the  party  complaining.  Dade  v.  Smith,  1  App.  C.  C.,  §  701. 


§  743.]  COSTS    IN    THE   APPELLATE   COURTS. 

the  mandate  will  issue  on  payment  of  the  costs  of  that  court,  but 
not  otherwise.1 

If  the  costs  due  in  either  court  are  not  paid  as  required,  the  clerk 
is  directed  to  issue  execution  therefor.  When  it  issues  from  the 
supreme  court,  it  must  sj>ecify  the  costs  due  in  each  court,  and  a 
correct  list  of  all  the  costs  accruing  in  each  court  must  be  attached 
to  the  execution.2  Where  an  execution  issues  from  the  court  of  civil 
appeals,  it  may  be  sent  by  mail  to  the  proper  officer  for  collection;* 
when  it  issues  from  the  supreme  court,  it  is  provided  that  it  shall 
be  directed  to  the  sheriff  or  any  constable  of  the  county  from  which 
the  cause  was  removed,  or  to  any  county  in  which  the  person  or 
persons  liable  under  the  execution,  or  either  of  them,  may  have 
property.  It  is  made  the  duty  of  the  officer  to  execute  and  return 
the  execution  under  the  same  rules,  regulations  and  liabilities  as  are 
provided  for  executions  from  the  district  court.4  Executions  issu- 
ing from  either  court  must  be  returned  within  four  months  from 
their  date.5  If  the  officer  fail  or  refuse  to  make  a  return  within 
the  required  time,  with  the  amount  of  the  costs,  if  he  has  collected 
the  same,  or  if  he  make  a  false  or  fraudulent  return,  the  clerk  may 
issue  citation,  returnable  forthwith,  requiring  the  officer  to  appear 
before  the  court  and  show  cause,  if  he  can,  why  he  has  not  col- 
lected and  returned  the  costs  and  execution.  If  he  fail  to  show 
cause,  the  court  may  enter  judgment  against  him  and  the  sureties 
on  his  official  bond  for  twice  the  amount  of  the  costs,  together  with 
the  cost  of  the  proceeding.6 

§  743.  Fees  ot  clerk  of  supreme  court. 

The  clerk  of  the  supreme  court  receives  the  following  fees:7 
Knit-rim:  appearance  of  either  party,  in  person  or  by  attorney, 
to  be  charged  but  once $0  50 

1  R  a  1029,  1036. 

2  R  S.  984.    Under  the  statute  applicable  before  the  organization  of  the  courts 
of  civil  appeals,  the  execution  issued  from  the  supreme  court  only  for  the  costs 
of  that  '  •  >urt,  and  it  was  held  that  the  legal  effect  of  a  judgment  in  the  supreme 
court,  which  provided  that  "appellants  recover  of  appellee  all  costs  in  this  be- 
half expended,"  was  a  recovery  of  judgment  for  all  costs  of  appeal  in  both  the 
supreme  and  district  courts.    Under  such  a  judgment  execution  issued  from 
the  supreme  court  for  costs  of  appeal  incurred  in  that  court,  whilr  the  costs  of 
til--  transcript  and  all  other  costs  of  appeal  were  collected  under  execution  is- 
suing from  the  district  court.    Bonner  v.  Wiggins,  54  T.  149. 

The  issuance  of  an  execution  follows  as  a  necessary  legal  consequence  from 
tip-  rendition  of  a  judgment  for  costs  by  the  supreme  court.  Schmidt  v.  HutF. 
28  S.  W.  Rep.  1053. 

»RS.  1038. 

«RS.984 

•  R  S.  985.  1087. 

•  R  S.  986,  1038.     Woodhouse  v.  T  re  vino,  2  App.  C.  C,  §  505,  is  a  case  under  t  he 
Statute. 

•R  a  2445.    See  note  to  g  744,  infra. 


704  COSTS   IN   THE   APPELLATE   COURTS.  [§  744. 

Docketing  each  cause,  to  be  charged  but  once $0  50 

Filing  the  record  in  each  cause 50 

Entering  each  rule  or  motion 25 

Entering  the  order  of  the  court  upon  any  rule  or  motion,  or 

entering  any  interlocutory  judgment 50 

Administering  an  oath  or  affirmation  without  a  certificate.  . .       15 
Administering  an  oath  or  affirmation  and  giving  certificate 

thereof,  with  seal 25 

Entering  each  continuance 20 

Entering  each  final  judgment  or  decree 1  00 

Each  writ  issued   1  00 

Making  out  and  transmitting  the  mandate  and  judgment  of 

the  supreme  court  to  any  inferior  court 1  50 

Making  copies  of  any  papers  or  records  in  their  offices,  includ- 
ing certificate  and  seal,  for  each  one  hundred  words 15 

Recording  the  opinions  of  the  judges,  for  each  one  hundred 

words 20 

Taxing  the  bill  of  costs  in  each  case  with  copy  thereof 50 

Issuing  attorney's  license 5  00 

For  every  service  not  above  provided  for  the  clerk  may  receive 
such  fees  as  may  be  allowed  by  the  court,  not  to  exceed  the  fees 
allowed  for  services  requiring  a  like  amount  of  labor.1 

§  744.  Fees  of  clerks  ol  courts  ol  civil  appeals. 
The  clerks  of  the  courts  of  civil  appeals  are  allowed,  as  a  com- 
pensation for  their  services,  the  following  fees:2 
Entering  appearances  of  either  party,  in  person  or  by  attor- 
ney, to  be  charged  but  once $0  50 

Docketing  each  cause,  to  be  charged  but  once 50 

Filing  the  record  in  each  cause 50 

Entering  each  rule  or  motion 25 

Entering  the  order  of  court  upon  any  rule  or  motion,  or  enter- 
ing any  interlocutory  judgment 50 

Administering  an  oath  or  affirmation,  without  a  certificate. .       15 
Administering  an  oath  or  affirmation  and  giving  a  certificate 

thereof  with  seal 25 

Entering  each  continuance 20 

Entering  each  final  judgment  or  decree 1  00 

i  R.  S.  2446. 

2R.  S.  1011;  Acts  1893,  p.  164.  In  the  Revised  Statutes  of  1895,  article  2445 
(§  743,  supra,  the  article  which  originally  prescribed  the  fees  of  the  clerk  of  the 
supreme  court)  purports  to  prescribe  the  fees  both  of  the  clerk  of  the  supreme 
court  and  the  clerks  of  the  courts  of  civil  appeals.  The  article  differs  in  sev- 
eral particulars  from  the  above,  and  it  is  probable  that,  by  virtue  of  section  20 
of  the  Final  Title  of  the  Revised  Statutes,  the  above  article  1011  will  be  held  to 
express  the  intent  of  the  legislature.  By  the  arrangement  referred  to,  the  clerks 
of  the  courts  of  civil  appeals  are  given  the  benefit  of  article  2446  (the  general 
provision  at  the  end  of  §  743,  supra),  which  heretofore  has  applied  only  to  the 
clerk  of  the  supreme  court.  There  is  no  such  general  provision  in  the  act  of 
1893,  and  there  seems  to  be  no  good  reason  why  the  clerks  may  not  avail  them- 
selves of  the  benefit  afforded  by  the  arrangement. 


15.]  COSTS    IN    THE    APPELLATE   COURTS.  705 


Kadi  writ  issiiiMl  .......................................  $1  00 

Making  out  ami  transmitting  the  mandate  and  judgment  of 

the  court  to  any  inferior  court  .........................    1  50 

Making  copies  of  any  papers  or  records  in  their  offices,  includ- 

ing certificate  and  seal,  for  each  one  hundred  words  ......  10 

Recording  the  opinions  of  the  judges,  for  each  one  hundred 

\\onls..  ..............................................  15 

Taxing  the  bill  of  costs  in  each  case  .......................  50 

Filing  each  brief,  or  other  paper  necessary  to  be  filed  .......  10 

For  certificate  and  seal,  where  same  is  necessary  ...........  50 

i  ding  sheriff's  return  on  execution  ....................  50 

For  issuing  copies  of  each  notice  ordered  by  court  .........  5U 

=•  745.  Report  by  clerks  of  courts  of  civil  appeals. 

It  is  the  duty  of  each  clerk  of  a  court  of  civil  appeals,  within  ten 
i  lays  after  the  first  day  of  January  and  July,  to  make  a  report  to 
the  court  under  oath,  showing  the  amount  of  costs  collected  by  him, 
during  the  preceding  six  months,  and  also  the  cases  in  which  they 
were  collected,  and  the  disposition  made  of  such  costs.  The  report 
must  be  filed  and  recorded  in  the  minutes  of  the  court.1 

1R&101Q. 
45 


CHAPTER  LI. 


ARBITRATION  UNDER  THE  STATUTE. 


746.  Of  the  right  to  arbitrate. 

747.  Agreement   to    arbitrate,    how 

made;  where  filed. 

748.  Submission  must  conform  to  the 

statute. 

749.  Notice  of  day  of  trial;  process 

for  witnesses;  organization; 
continuance;  trial;  order  of 
argument. 


750.  Trial  to  be  governed  by  rules  of 

law  and  equity. 

751.  The  award. 

752.  Umpire  chosen,  when;  proceed- 

ings. 

753.  Right  of  appeal 

754  Validity  and  effect  of  the  award. 

755.  An  award  will  be  set  aside  for 

fraud,  mistake,  etc. 

756.  Penalty  for  refusing  to  proceed. 


§  746.  Of  the  right  to  arbitrate. 

The  constitution  makes  it  the  duty  of  the  legislature  to  pass  such 
laws  as  may  be  necessary  and  proper  to  decide  differences  by  arbi- 
tration, when  the  parties  shall  elect  that  method  of  trial.1  All  per- 
sons desiring  to  submit  any  dispute,  controversy  or  right  of  action 
to  arbitration  have  the  right  so  to  do  in  accordance  with  the  pro- 
visions of  the  statute.2  Doubts  have  been  expressed  whether  the 
statute  was  intended  to  apply  to  and  embrace  matters  of  difference 
between  parties  on  which  suit  had  been  commenced ; 3  but  in  a  later 
case  a  judgment  upon  an  award  was  sustained  without  noticing  the 
doubt  suggested.4 

The  provisions  of  the  statute  apply  to  corporations  as  well  as 
natural  persons,  and  executors,  administrators  and  guardians  may 
consent  to  an  arbitration  of  any  controversy  or  matter  of  dispute 
relating  to  or  affecting  their  respective  trusts,  with  the  consent  of 
the  court  in  which  such  administration  or  guardianship  is  pending.5 

1  Const,  art.  XVI,  §  13.    This  provision  is  found  in  all  the  constitutions  of 
Texas,  as  a  republic  and  as  a  state. 
2R.S.  47. 

3  Owens  v.  Withee,  3  T.  161;  Cox  v.  Giddings,  9  T.  44 

4  Taylor  v.  Harris,  16  T.  574    And  see  McHugh  v.  Peck,  29  T.  141. 

8  R.  S.  60.  A  partner  has  the  power  to  submit  partnership  affairs  to  arbitra- 
tion, and  when  he  does  so  his  action  is  binding  on  the  firm.  Alexander  v.  Mul- 
hall,  1  U.  C.  764.  Where  a  member  of  a  firm  signs  an  agreement  for  arbitration 
for  himself  and  also  in  behalf  of  his  firm,  and  the  arbitrators  determine  the 
identical  matters  submitted,  it  is  no  ground  of  objection  by  the  adverse  party 
that  the  award  is  in  favor  of  such  individual  member  alone.  Gilbert  v.  Knight, 
•SfApp.  C.  C.,  §315. 

An  agreement  to  arbitrate  by  minors,  followed  by  an  arbitration,  is  not  void; 
,  it  at  most  is  only  voidable.  Chambers  v.  Ker,  6  Civ.  App.  373  (24  S.  W.  Rep. 


§§  747,  748.]  ARBITRATION    UNDER   THE    STATUTE.  707 

One  of  several  matters  in  controversy  in  a  pending  suit  may  bo  sub- 
mitted to  arbitration.1 

§  747.  Agreement  to  arbitrate,  how  made;  where  filed. 

Persons  desiring  to  submit  a  matter  to  arbitration  must  sign  an 
agreement  in  writing,  as  plaintiff  and  defendant,  to  arbitrate  their 
differences  or  matters  in  dispute,  and  in  such  agreement  each  party 
shall  name  for  himself  one  arbitrator,  who  must  be  over  the  age  of 
twenty-one  years,  not  related  to  either  party  by  consanguinity  or 
affinity,  possessing  the  qualifications  of  a  juror,  and  who  is  not  in- 
terested in  the  result  of  the  cause  to  be  submitted  for  his  decision.1 
If  the  matter  in  dispute  exceeds  $200,  exclusive  of  interest,  the 
agreement  must  be  filed  with  the  clerk  of  the  district  or  county 
court  of  the  county  in  which  the  controversy  arose,  according  as 
the  amount  involved  or  matter  in  dispute  may  come  within  the  ju- 
risdiction of  one  court  or  the  other.3  If  the  agreement  is  made 


*• 


- 


pending  suit,  it  must  be  tiled  in  the  proper  cause ;  and  if  filed  dur- 
ing the  sitting  of  the  court,  an  order  should  be  made  for  referring 
the  cause.4 

748.  Submission  must  conform  to  the  statute. 
Parties  intending  to  avail  themselves  of  the  statute  must  sub- 
stantially pursue  its  provisions;  and  if  there  is  any  material  vari- 
ance therefrom,  the  award  of  the  arbitrators  cannot  be  made  the 
judgment  of  the  court,  under  the  statute.5  Where  six  arbitrators 
were  chosen,  instead  of  two,  as  provided  by  the  statute,  and  the 
agreement  contained  a.  penalty  by  which  its  performance  was  to  be 
enforced,  it  was  held  that  the  proceedings  were  not  in  conformity 
with  the  statute.6  And  so,  where  by  the  agreement  four  arbitra- 
tors were  named,  and  it  was  stipulated  that  any  three  of  them  might 
act,  and,  in  case  they  should  fail  to  act,  the  award  was  to  be  made 
by  such  arbitrators  as  might  be  agreed  upon  by  the  parties,  it  was 
held  that  the  award  could  not  be  enforced  as  a  statutory  award.1 

A  person  claiming  a  tract  of  land  in  his  own  right  could  not  submit  the 
claims  of  his  minor  children  to  said  land  to  arbitration  by  signing  for  them  an 
ment  to  submit  the  matter  to  arbitration.  Their  interests  were  adverse  to 
his.  Fortune  v.  Killebrew,  86  T.  17:.'  r.>:{  S.  \V.  Rep.  976).  The  submission  by  thu 
mother  of  matters  concerning  an  estate  in  which  she  and  her  minor  children 
have  a  common  interest  will  not  estop  the  minors.  Snow  v.  Walker,  42  T.  154. 

iDoekery  v.  Randolph,  30  S.  W.  Rep.  271. 

»R.S.4a 

»  R  S.  49.  If  the  amount  in  dispute  is  $200  or  less,  exclusive  of  interest,  such 
agreement  shall  be  filed  with  some  justice  of  the  peace  of  the  county  in  which 
the  defendant  resides  or  in  which  the  controversy  arose.  R  S.  49. 

«  Taylor  v.  Harris,  16  T.  574;  McHugh  v.  Peck,  29  T.  14L 

•  Alexander  v.  Witherspoon,  80  T.  29  L 

•Owens  v.  Withee,  3  T.  16L 

'Cox  v.  Giddings,  9  T.  44, 


70S  ARBITRATION    UNDER   THE    STATUTE.  .  ,    [§  749. 

But  where  the  agreement  provided  for  the  submission  to  three  ar- 
bitrators, one  to  be  chosen  by  each  of  the  parties,  and  the  third  to 
be  selected  by  these  two,  it  was  held  to  be  a  substantial  compliance 
with  the  statute ;  and  it  was  further  held  that,  although  an  agree- 
ment to  arbitrate  does  not  expressly  show  that  the  parties  intended 
to  pursue  the  statutory  remedy,  yet,  if  their  agreement  does  not 
depart  in  substance  from  the  provisions  of  the  statute  (although  it 
fail  in  several  respects,  in  matters  of  form,  to  conform  to  the  stat- 
ute), and  the  parties  afterwards  cause  the  agreement  to  be  filed  in 
court  and  proceed  thenceforward  under  the  statute,  the  award  will 
be  good  as  a  statutory  award.1 

A  substantial  compliance  with  the  statute  is  all  that  is  required, 
and  an  agreement  to  arbitrate,  which  describes  the  parties,  the  sub- 
ject-matter, selects  arbitrators,  and  provides  for  the  selection  of  an 
umpire,  is  sufficient.  Filing  the  agreement  with  the  clerk  before 
the  arbitration  and  his  presiding  at  the  trial  may  be  waived.  The 
agreement  may  be  filed  with  the  award.2 

§  749.  Notice  of  day  of  trial;  process  for  witnesses;  organization; 
continuance;  trial;  order  of  argument. 

"When  the  agreement  is  filed,  the  clerk  must  forthwith  designate 
a  day  for  the  trial  of  the  cause,  not  less  than  two  days  thereafter, 
and  must  issue  process  for  such  witnesses  as  either  party  may  de- 
sire, returnable  on  the  day  fixed  for  trial.3  On  the  assembling  of 
the  arbitrators  on  the  day  of  trial,  the  clerk  must  administer  an 
oath  to  each.4  After  being  sworn  the  arbitrators  may,  for  good 

1  Forshey  v.  Railroad  Co.,  16  T.  516.    For  a  case  in  which  a  judgment  entered 
upon  an  opinion  of  an  umpire  selected  by  the  attorneys  of  the  parties  was  held 
not  a  judgment  upon  an  award,  but  by  consent,  and  therefore  a  waiver  of  errors, 
see  Townsend  v.  Moore,  13  T.  36. 

2  Alexander  v.  Mulhall,  1  U.  C.  764.    The  agreement  in  this  case  was  for  the 
arbitration  of  a  matter  on  which  suit  had  not  been  commenced. 

8  R.  S.  50.  The  statute  does  not  prescribe  the  mode  by  which  the  appoint- 
ment of  the  day  of  trial  shall  be  authenticated,  or  made  known  to  the  parties, 
.  nor  does  it  require  the  clerk  to  make  it  a  matter  of  record.  Offeciers  v.  Dirks, 
2  T.  468;  Hall  v.  Little,  11  T.  404.  The  right  to  have  a  day  assigned  by  the  clerk 
may  be  waived  by  the  voluntary  appearance  of  the  parties,  and  their  submit- 
ting their  cause  to  the  arbitrators  without  objecting.  It  seems  that  the  statute 
is  directory,  and  the  proper  time  to  raise  the  objection  that  no  day  was  ap- 
pointed is  when  the  arbitrators  are  about  to  proceed  with  the  trial,  if  the  par- 
ties be  present;  if  not  present,  then  the  objection  may  be  taken  in  court.  Hall 
v.  Morris,  30  T.  280.  When  the  record  does  not  show  affirmatively  that  the  par- 
ties had  notice  of  the  time  and  place  of  hearing,  and  exception  was  not  taken 
in  court  to  the  want  of  it,  the  appellate  court  will  presume  that  notice  was  duly 
given.  Hooper  v.  Brinson,  2  T.  185;  Hall  v.  Little,  11  T.  40-1;  McHugh  v.  Peck. 
29  T.  141. 

4  R.  S.  51.  The  oath  must  be  substantially  as  follows:  "  You  do  solemnly  swear 
(or  affirm)  that  you  will  fairly  and  impartially  decide  the  matter  in  dispute  be- 
tween A.  B.,  the  plaintiff,  and  C.  D.,  the  defendant;  according  to  the  evidence 


§  750.]  ARBITRATION    UNDER    THE    STATUTE. 

cause  shown,  continue  the  hearing  to  some  other  day,  anil  during 
the  progress  of  any  trial,  for  like  good  cause,  may  adjourn  the  same 
over  to  some  other  time.1 

The  clerk  must  administer  the  necessary  oath  to  the  witnesses, 
and  the  trial  of  the  cause  will  proceed  in  like  manner  with  trials  in 
the  courts  of  this  state,  the  plaintiff  holding  the  affirmative  and  en- 
titled to  open  and  conclude  the  argument.2 

Although  the  statute  does  not  require  the  clerk  to  enter  his  acts 
of  record,  it  would  be  the  better  practice  for  him  to  certify,  under 
his  hand  and  seal,  the  proper  performance  of  the  acts  devolved 
upon  him,  viz..  the  designation  of  the  day  of  trial,  the  administra- 
tion of  the  oath  to  the  arbitrators  and  witnesses,  and  the  appoint- 
ment of  an  umpire,  as  an}'  substantial  deviation  from  the  require- 
ments of  the  statute  in  these  respects  would  vitiate  the  award.1 

£  750.  Trial  to  be  governed  by  rules  ot  law  and  equity. 

The  arbitrators  are  invested  with  the  functions  of  a  common-law 
and  equity  judge  and  a  jury,  and  may  make  their  award  accord  :nir 
to  equity  and  conscience,  without  regard  to  the  strict  rules  of  law. 
either  as  respects  evidence  or  the  rights  of  parties,  unless  it  be  ex- 
:  v  stipulated  in  the  agreement  that  the  parties  shall  be  entitled 
to  all  legal  defenses.4  In  most  cases,  however,  it  is  expedient  to 
observe  the  ordinary  rules  of  evidence  and  law;  and,  therefore,  the 
proceedings  should  in  general  be  conducted  as  in  a  court.  The  arbi- 
trators may,  and  in  most  cases  should,  require  from  the  parties  a 
reciprocal  statement,  showing  what  items  are  admitted  or  disputed ; 
and  may,  when  they  deem  it  necessary,  examine  the  parties  them- 
selves.* 

adduced  and  the  law  and  equity  applicable  to  the  facts  proved,  so  help  you 
God." 

An  agreement  to  arbitrate  contemplates  that  the  arbitrators  and  umpire 
shall  be  sworn,  and  an  award  made  by  one  arbitrator,  and  an  umpire  who  was 
not  sworn,  was  held  not  to  be  a  statutory  award,  and  not  entitled  to  be  err 
as  the  judgment  of  the  court.    Where  a  city  is  a  party  to  the  proceeding,  it 
seems  that  the  city  attorney,  without  special  authority,  would  not  have  the  au- 
thority to  waive  the  requirement  of  the  statute.    Anderson  v.  City  <>f  Ft. \Vorth, 
«:}  T.  107  (18  S.  W.  Rep.  4-S3).     A  certificate  of  the  clerk  that  the  arbitrator- 
sworn  as  required  by  law  was  held  sufficient.     Offeciers  v.  Dirks.  -,'  T.  468. 

1  K.  S.  52.  Going  into  tin-  investigation  without  giving  proper  notice  to  the 
parties,  or  refusing  to  allow  sufficient  time  to  prorur.-  tin-  necessary  t« --tun. my. 
would  be  such  improprieties  on  the  part  of  arbitrators  as  would  vitiat.-  tli«» 
award.  Green  v.  Franklin,  1  T.  497;  Mcllugh  v.  Peck,  29  T.  HI. 

1RS.58. 

'Green  v.  Franklin,  1  T.  497. 

4R.  S.  51.  The  arbitrators  may  disregard  a  strict  legal  defense,  ao  that  of 
usury.  Edrington  v.  League.  1  f.  04;  2  Chit.  Gen.  Pr.  76;  Kyd  on  Awards,  851; 
F<.r-iiey  v.  Railroad  Co.,  16  T.  516. 

*  R.  S.  53.  It  was  oUj.-rtt-u  t«i  an  award  of  arbitrators  that  the  defendant  had 
filed  no  answer,  and  that  the  plaintiff  had  no  notice  of  the  offsets  and  claims  of 


710  ARBITRATION   UNDER   THE   STATUTE.  [§  751. 

§  751.  The  award. 

After  hearing  the  evidence  and  arguments,  if  any,  the  arbitrators 
agree  upon  their  award  and  reduce  it  to  writing,  specifying  plainly 
their  decision,  and  file  it  with  the  clerk.  At  the  succeeding  term 
of  the  court  the  award  is  entered  and  recorded  as  the  judgment  of 
the  court,  with  like  effect  as  other  judgments  of  said  court,  and 
upon  which  execution  may  issue  as  on  ordinary  judgments.1  The 
arbitrators  may  award  the  costs  to  either  party,  and  if  their  de- 
cision or  award  is  silent  as  to  costs,  they  are  to  be  taxed  equally 
against  the  parties.2 

Where  an  award  is  made  during  a  term  of  court,  judgment  can- 
not be  entered  thereon  until  the  next  succeeding  term,  except  by 
consent  of  parties.3  The  object  of  the  statute  is  to  give  time  to 
enter  objections ;  and  the  award  is  not  vitiated  because  not  made 
the  judgment  of  the  court  at  the  first  term  after  it  was  rendered.* 
If  no  right  of  appeal  is  reserved,  the  award  is  made  a  judgment  of 
the  court  as  a  matter  of  course,  unless  the  proceedings  appear  not 
to  have  been  in  conformity  with  the  statute.5  When  an  award  of 
arbitrators,  rendered  under  an  agreement  to  arbitrate,  reserving 
the  right  to  appeal,  is  made  the  judgment  of  the  district  court  on 
motion,  without  objection,  and  no  application  for  appeal  made,  it 
would  seem  that  the  judgment  of  the  district  court  should  be  af- 
firmed on  appeal  in  the  absence  of  facts  shown  upon  the  face  of  the 

the  defendant,  which  were  acted  upon  and  allowed  by  the  arbitrators.  It  is  said 
by  the  court  that  pleadings  are  not  required  in  a  controversy  before  arbitrators. 
It  is  also  said  that  if  the  appellant  was  surprised  by  any  matter  of  evidence  in- 
troduced by  the  appellee  before  the  arbitrators,  and  he  was  not  prepared  to  meet 
the  claim  presented  by  the  appellee,  but  believed  he  could  do  so  by  having  time, 
he  should  have  applied  to  have  the  decision  of  the  arbitrators  postponed  till  he 
could  procure  testimony  to  rebut  the  claim  improperly  set  up  by  the  defendant. 
If,  on  a  proper  application  by  the  appellant  for  time  to  procure  and  submit  to 
the  arbitrators  testimony,  his  application  had  been  denied,  and  he  should  state 
such  facts  as  to  show  that  injustice  had  been  done  by  denying  his  request,  such 
facts  might  present  a  case  authorizing  the  court  to  reject  the  report.  But  the 
case  was  decided  on  other  grounds.  McHu0.i  v.  Peck,  29  T.  141.  Where  suit 
i  has  not  been  commenced  at  the  time  an  agreement  to  arbitrate  is  made,  neither 
pleadings  nor  process  is  necessary.  Alexander  v.  Mulhall,  1  U.  C.  764. 

1  R.  S.  54. 

2  R.  S.  58. 

a  Alexander  v.  Witherspoon,  30  T.  291.  Where  the  parties  did  not  reserve  the 
right  of  appeal  in  the  submission,  and  the  district  court  refused  to  enter  the 
award,  the  supreme  court  examined  the  facts,  and,  finding  that  the  award  was 
sustained  by  the  evidence,  reversed  the  judgment  and  entered  judgment  upon 
the  award.  King  v.  Grey,  31  T.  22. 

*  Hall  v.  Morris,  30  T.  280. 

5Officiers  v.  Dirks,  2  T.  468;  Schultz  v.  Lempert,  55  T.  273.  Presumptions 
which  always  exist  in  favor  of  the  regularity  and  correctness  of  judgments  are 
admitted  to  show  the  consent  of  parties  to  a  judgment  upon  an  award.  Edring- 
ton  v.  League,  1  T.  64. 


7.")3.]  ARBITRATION-    UNDER    THE    STATUTE.  711 

award  or  proceeding, —  some  irregularity  or  deviation  from  the  stat- 
•  •r  some  -  f  authority  exercised  by  the  arbitral- 

752.  Umpire  chosen,  when;  proceedings. 

If  the  arbitrators  cannot  agree  they  must  select  an  umpire  with 
like  qualification!  as  themselves;  or  in  case  they  disagree  in  the 
choice  of  an  umpire,  the  clerk  must  select  one.  lie  must  be  sworn. 
in  like  manner  as  the  arbitrators,  and  the  cause  may  be  tried  anew 

h  time  as  the  board  of  arbitration  thus  constituted  may 
te,  with  like  proceedings  as  to  the  making  up  and  tiling  of  the 
award  as  is  prescribed  by  the  statute.-     It  is  no  objection  to  an 
award  as  a  statutory  award  that  by  the  terms  of  the  agreement  the 
two  arbitrators  appointed  a  third  man,  and  all  three  proceeded  to 
ligate  the  cause  in  the  first  instance.1 

753.  Right  of  appeal. 

If  a  right  of  appeal  is  not  expressly  reserved  in  the  original  agree- 
ment to  arbitrate,  no  such  right  will  exist,  but  the  decision  of  the 
arbitrators  will  be  final.  If  such  right  is  reserved,  and  either  party 
appeal  from  the  decision  or  award,  he  must  file  his  written 
.application  to  that  effect  with  the  clerk,  on  or  before  the  return 
day  of  the  term  of  the  court  next  thereafter.4  "When  the  applica- 
tion is  filed  it  must  be  noted  on  the  docket  of  the  court,  and  the 
opposite  party  served  with  a  citation,  as  in  ordinary  cases  of  suit 
by  petition.  I'pon  return  of  service  upon  the  opposite  party,  the 
-rands  for  trial  de  nova  as  in  ordinary  cases."1 

When  a  right  to  appeal  is  reserved  in  an  agreement  to  arbitrate 
under  the  statute,  the  arbitration  becomes  practically  nothing  more 
than  an  experimental  attempt  to  satisf}7  both  parties,  if  there  is 
timely  application  for  appeal  and  citation  properly  served.  In  such 
>•  stands  for  trial  dt  noco  as  if  no  agreement  to  arbi- 
trate had  been  made.6 

ultz  v.  Lerapert,  5  T.  273.    In  an  action  involving  disputed  accounts  and 
cross-account. s,  it  appeared  from  the  pleadings  that  there  was  a  dispute  be 
the  parties  as  to  what  were  the  real  accounts  in  issue.     Upon  a  submission  of 

a  use  to  arbitration  and  a  motion  to  enter  judgment  on  the  • 

upon  a  proper  refusal  to  enter  such  judgment,  it  was  held  that  the  court  also 

properly  refused  to  send  the  matter  back  to  the  arbitrators.     Where  proceea 

ings  under  an  arbitration  are  not  in  compliance  with  tin-  statute,  the  refusal  of 

•art  to  enter  judgment  upon  an  award  in  a  case  not  pending  before  it  is 

not  error.    Where,  after  a  consent  to  arbitration  on  disputed  accounts  and 

cross-accounts,  the  plaintiff  mtnwluces  matters  not  invulvi-,1  in  the  original  <lis- 

tlif  court  may  i>r<>|M-rly  refuse  to  enter  judgment  on  the  award.     Thomp- 

S.  W.  Rep.  895. 

2R.  S.  55;  King  v.  <in-y.  :\\  T.  ','J:  M.  Hugh  v.  Peck,  29  T.  141. 
»Forx|,,.y  v.  Railroad  Co.,  16  T.  518. 
<  R  S.  56;  Offeciers  v.  Dirks  '2  T.  46a 
»R  > 
*Schultz  v.  Lempert,  55  T.  273. 


712  ARBITRATION   UNDER   THE    STATUTE.  [§  754; 

§  754.  Validity  and  effect  of  the  award. 

Every  presumption  not  contradicted  by  proof  will  be  admitted  to 
support  an  award ;  while  much  will  be  conceded  to  the  discretion 
of  the  arbitrators,  irregularities  calculated  to  injure  either  party 
will  not  be  tolerated.1  Awards  are  regarded  with  peculiar  favor,, 
and  in  the  absence  of  fraud,  mistake  or  misconduct  are  held  final 
and  conclusive  as  to  all  matters  submitted  in  the  agreement.2  It  is 
no  valid  objection  to  an  award  that  it  is  bad  in  a  point  not  affect- 
ing the  parties,  if  the  good  portion  be  separable  from  the  other, 
and  is  complete  in  itself.3  An  award  in  excess  of  the  authority  of 
the  arbitrators  is  void  unless  the  matter  in  excess  is  such  as  may  be 
disregarded  and  a  valid  award  left  standing.  The  power  conferred 
upon  a  court  to  enter  a  judgment  upon  an  award  in  a  case  not  pend- 
ing before  it  is  purely  statutory.  It  is  not  a  proceeding  according- 
to  the  course  of  the  common  law.  It  is  neither  a  suit  at  law  nor  a 
case  in  equity.  There  is  nothing  for  the  court  to  hear  and  deter- 
mine except  the  incidental  questions  which  may  grow  out  of  the 
award  itself ;  that  is  to  say,  whether  or  not  the  arbitrators  have 
impartially  discharged  their  duty  under  the  powers  conferred  upon 
them  by  the  submission,  and  in  the  manner  pointed  out  by  the- 
statute.  So  far  as  the  merits  of  the  original  controversy  are  con- 
cerned, the  duty  of  the  court  is  ministerial  rather  than  judicial; 
that  is,  it  is  merely  to  enter  judgment  in  accordance  with  a  legal 
and  proper  award.  In  cases  in  which  an  extraordinary  power  of 
this  character  —  a  power  simply  to  enter  judgment  in  a  case  not 
brought  before  it  by  petition,  complaint  or  suit,  in  accordance  with 
the  essential  principles  of  the  common  law,  and  upon  the  finding  of 
a  distinct  tribunal  of  the  parties'  own  selection  —  is  conferred  by 
statute  upon  a  court  of  general  jurisdiction,  the  jurisdiction  should 
be  treated  as  special;  the  statutory  authority  should  be  substantially 
pursued;  and  if  that  authority  be  exceeded,  the  judgment  entered 
upon  the  award  should  be  held  void.  The  power  of  the  court  under 
the  statute  to  enter  the  judgment  originates  in  the  agreement  to 
submit  to  arbitration,  and  is  confined  to  the  authority  to  enter  the 
judgment  upon  the  issues  submitted  and  in  accordance  with  the 
terms  of  the  submission.  If  there  be  no  agreement  binding  upon 
all  the  parties  to  the  submission,  and  especially  if  there  be  neces- 
sary parties  to  a  suit  to  determine  the  issues  who  do  not  join  in  the 

1  Green  v.  Franklin,  1  T.  97. 

2McHugh  v.  Peck,  29  T.  141;  Gilbert  v.  Knight,  3  App.  C.  C.f  §  316;  Schultz  v. 
Lempert,  55  T.  273;  Jones  v.  Frosh,  6  T.  202:  Aycock  v.  Doty,  1  App.  C.  C.,  §  223. 
All  objections  must  be  made  in  the  court  below,  and  the  facts  must  appear  by 
a  statement  of  facts  or  bill  of  exceptions  in  order  to  obtain  a  revision  of  the 
ruling.  McHugh  v.  Peck,  29  T.  141;  Hall  v.  Little,  11  T.  404;  Payne  v.  Metz,  14 
T.  56. 

'Schultz  v.  Lempert,  55  T.  273. 


§  755.]  ARBITRATION    UNDER   THE    STATUTE.  715 

submission,  or  if  the  arbitrators  fail  to  determine  the  issues,  and  at- 
tempt to  decide  matters  not  submitted  to  their  determination,  the 
award  is  void,  and  any  judgment  entered  upon  it  must  necessarily 
fall  with  it.1 

55.  An  award  will  be  set  aside  for  fraud,  mistake,  etc. 
An  award  will  be  set  aside,  although  the  right  of  appeal  has  not 
been  reserved,  for  irregularities  which  operate  to  the  prejudice  of 
cither  of  the  parties,  and  where  there  has  been  fraud  in  the  party, 
or  partiality,  misconduct  or  gross  mistake  on  the  part  of  the  arbi- 
trators. It  is  not  every  error  or  mistake  of  law  or  fact  which  will 
•warrant  the  setting  aside  of  an  award:  in  the  absence  of  fraud  or 
gross  mistake  it  has  the  conclusive  effect  of  a  judgment,  and  can 
only  be  annulled  for  the  same  causes  for  which  a  judgment  may  be 
set  aside.2  The  proceedings  to  set  aside  an  award  may  be  by  mo- 

»  Fortune  v.  Killebrew,  86  T.  173  (23  &  W.  Rep.  976).  And  it  is  held  that  recitals 
of  consent  of  parties  in  the  judgment  entry  upon  an  award  iiled  upon  submis- 
sion outside  the  court  do  not  have  the  conclusive  effect  as  if  the  reference  to 
arbitrators  had  been  made  in  a  suit  pending  with  all  parties  before  the  court. 

While  an  award  of  arbitrators  may  be  binding,  though  a  ministerial  authority 
be  reserved  therein  to  be  thereafter  exercised,  such  as  the  correction  of  errors 
of  computation  apparent  from  the  award  itself,  yet  if,  on  its  face,  it  contains 
the  declaration  by  the  arbitrators  that  they  will  correct  "any  errors  that  may 
be  discovered,"  it  is  void.  Hooker  v  Williams,  60  T.  524 

sufficient  if  the  arbitrators  were  sworn,  and  the  award  is  signed  by  one 
of  the  arbitrators  originally  selected  and  the  umpire.  Alexander  v.  Mulhall.  1 
U.  C.  764  Where  the  agreement  does  not  specially  provide  that  the  parties 
should  be  present  when  the  award  is  rendered,  their  absence  does  not  invalidate 
the  au-ani.  Wiley  v.  Heard,  1  App.  C.  C.,  §  1203. 

Where  the  submission  does  not  require  a  statement  in  the  award  of  the  con- 
clusions of  the  arbitrators,  but  simply  that  they  shall  examine  the  mutual  claims 
of  the  parties  and  find  out  how  much  is  due  one  of  them  from  the  other,  an 
award  stating  an  amount  found  to  be  due  one  of  the  parties  is  sufficient.  Gill 
v.  Bickel,  30  S.  W.  Rep.  919. 

'Schultz  v.  Lenopert,  55  T.  273;  Payne  v.  Metz,  14  T.  56;  Forshey  v.  Railroad 
Co.,  16  T.  516;  Shulte  v.  Hoffman,  18  T.  678;  Bowden  v.  Crow,  2  Civ.  App.  591 
W.  Hep.  612);  Gilbert  v.  Knight.  3  App.  C.  C.,  g  816.    In  a  suit  to  set  aside 
a  statutory  award,  charges  of  gross  mistake  in  allowing  an  item  of  damage,  and 
that  the  award  was  based  on  perjured  statements  made  to  the  arbitrators, 
each  sufficient,  if  sustained,  to  set  aside  the  award,  provided  the  party  complain- 
ing was  not  guilty  of  negligence  in  failing  to  have  the  wrongs  righted  before 
rhitratora.     Aycock  v.  Doty,  1  App.  C.  C..  £  221. 

Charges  of  fraud,  partiality  and  mistake  in  making  an  award  are  not  sus- 
tained by  evidence  relating  to  the  merits  of  the  controversy  between  the  part  irs 
as  though  no  award  had  been  made,  and  which  fails  to  show  fraud  or  partiality 
by  the  arbitrators,  or  any  mistake  of  fact  by  them  of  a  material  character. 
Bowden  v.  Crow,  2  Civ.  App.  591  (21  S.  W.  K-p.  rtl2). 

When  suit  is  brought  upon  an  award  and  the  defendant  seeks  to  attack  it  on 
ground  of  fraud  or  mistake  or  other  reasons,  he  must  plead  such  defenses;  oth.-r- 
wi.se  the  facts  or  items  acted  upon  in  the  arbitration  cannot  be  considered. 
Chambers  v.  Ker.  r.  Civ.  App.  :;?:{  (24  S.  W.  Rep.  1118).  Although  arbitrators- 
were  mistaken  in  their  construction  of  a  lease  on  which  the  rights  of  parties 


ARBITRATION    UNDER   THE   STATUTE.  [^  756. 

tion  or  by  petition.  The  grounds  relied  on  should  be  distinctly  set 
forth,  and  all  not  specially  set  down  will  be  regarded  as  waived.1 
They  should  be  verified  by  the  affidavit  of  the  party,  and  tiled  within 
the  time  allowed  for  giving  notice  of  appeal,2  unless  the  application 
is  brought  within  the  equitable  rules  governing  petitions  for  a  new 
trial  made  after  the  expiration  of  the  term.  If  the  award  is  set 
aside,  and  the  case  is  one  for  judicial  cognizance,  the  court,  having 
obtained  jurisdiction,  should  proceed  to  a  final  adjudication  of  the 
rights  of  the  parties.3 

In  a  proceeding  to  set  aside  an  award  the  entire  controversy 
should  be  submitted  to  the  jury  under  proper  instructions  —  the 
grounds  for  vacating  the  award,  and  also  the  merits  of  the  case.  If 
the  jury  find  that  the  award  should  not  be  set  aside  they  proceed 
no  further;  otherwise  they  pass  upon  the  merits  of  the  case.4  "Where 
objections  are  filed  to  an  award,  questions  of  fact  involved  in  such 
objections  are  to  be  tried  by  the  court  without  a  jury.5 

§  756.  Penalty  for  refusing  to  proceed. 

After  an  agreement  to  arbitrate  is  filed  as  prescribed,  the  parties 
are  bound  to  that  mode  of  trial  under  the  following  penalties, 
to  wit :  The  agreement  may  be  pleaded  in  bar  to  any  suit  there- 
after brought  by  a  plaintiff  in  such  agreement  for  the  same  cause 
of  action,  when  such  plaintiff  has  refused  to  proceed  under  the 
agreement ;  and  may  be  pleaded  in  bar  to  any  right  claimed  or  de- 
fense set  up  by  a  defendant  in  such  agreement  who  has  refused  to 
proceed  thereunder,  where  such  right  or  defense  existed  at  the  time 
of  filing  the  agreement.6 

depended,  unless  the  mistake  was  gross  and  palpable  the  award  pleaded  in  a 
suit  will  be  sustained.  Moore  v.  Jones,  25  S.  W.  Rep.  987. 

1  Forshey  v.  Railroad  Co.,  16  T.  516.    A  plea  to  set  aside  an  award  is  insuffi- 
cient if  it  fails  to  specifically  and  distinctly  set  out  the  fraud,  misconduct  or 
mistake  of  the  arbitrators  complained  of.    Alexander  v.  Mulhall,  1  U.  C.  764; 
Bowtlen  v.  Crow,  2  Civ.  App.  591  (21  S.  W.  Rep.  612). 

2  Payne  v.  Metz,  14  T.  56. 

8  Payne  v.  Metz,  14  T.  56;  Johnson  v.  Cheney,  17  T.  336. 

4  Bowden  v.  Crow,  2  Civ.  App.  591  (21  S.  W.  Rep.  612);  Mitchell  v.  Love,  39  T. 
349. 

6  Shulte  v.  Hoffman,  18  T.  678.    In  such  a  case  it  is  not  necessary  for  the  oppo- 
site party  to  file  an  answer. 

The  courts  allow  matters  to  be  pleaded  to  set  aside  an  award  upon  the  hear- 
ing of  the  motion  to  enter  it  as  a  judgment.  Alexander  v.  Mulhall,  1  U.  C.  764. 
Where  suit  is  brought  to  set  aside  an  award,  and  it  is  pleaded  that  the  party  in 
whose  favor  the  award  was  rendered  is  insolvent,  setoffs  pleaded,  which  were  - 
not  considered  and  determined  by  the  award,  should  be  allowed  against  the 
judgment  to  be  entered  upon  the  award.  Aycock  v.  Doty,  1  App.  C.  C.,  §  223, 
nd  cases  cited. 

«R.  S.  59. 


CHAPTER  LIL 

ARBITRATION  AT  COMMON  LAW. 

Agreement,  how  made.  i  §  759.  Authority  of  arbitrators. 

Award  must  pursue  agreement.  |      760.  Award,  how  enforced. 

757.  Agreement,  how  made. 

"iiintr  in  the  statute  on  arbitration  is  to  be  construed  as  af- 
fecting the  existing  right  of  parties  to  arbitrate  their  differences  in. 
such  otlu-r  mode  as  they  may  select;1  the  statutory  remedy  is  cumu- 
lative.2 The  agreement  to  arbitrate  may  be  either  verbal,  in  writ- 
ing not  under  seal,  by  specialty,  or  by  rule  or  order  of  a  court  in 
•which  an  action  is  pending;  but  the  submission  cannot  be  made 
a  rule  of  court  unless  it  be  made  in  an  action  pending.  The  statute 
having  directed  the  mode  in  which  the  award  of  arbitrators  can  be 
summarily  enforced,  the  consent  of  the  parties  cannot  give  the  court 
jurisdiction  of  the  matter  in  any  other  mode;  but,  if  the  court  al- 
ready has  jurisdiction  of  the  case,  it  has  the  authority  to  enforce 
any  agreement  of  the  parties  made  therein.3 

Where  a  matter  is  submitted  to  arbitrators  pending  suit,  and  the 
proceedings  are  not  such  as  to  authorize  a  judgment  on  the  award 
under  the  statute,  the  award  should  be  sustained  as  a  common-law 
award  if  the  proceedings  are  not  otherwise  objectionable.4 

iR.S.61. 

2  Owens  v.  Withee,  3  T.  161;  Cox  v.  Giddings,  9  T.  44;  Aspley  v.  Thomas,  17  T. 

»2  Arch.  Pr.  322;  2  Chit.  Gen.  Pr.  79.  See  Stephenson  v.  Price,  30  T.  715.  Rule 
47  does  not  forbid  an  oral  agreement  to  arbitrate  the  matters  in  litigation  out- 
side of  the  pending  suit.  An  oral  submission  to  arbitration,  when  not  in  con- 
ilict  with  the  statute  of  frauds,  is  binding  in  this  state,  as  well  as  at  common 
law,  and  the  right  extends  to  pending  suits.  Faggard  v.  Williamson,  4  Civ. 
App.  337  (23  S.  W.  Rep.  557). 

*Dockery  v.  Randolph,  30  8.  W.  Rep.  271.  When,  during  the  progress  of  a 
suit  actually  pending,  the  parties,  in  writing,  agree  to  have  their  rights  to  land 
determined  by  one  man  named  by  them,  by  whose  award  they  agree  to  abide, 
though  the  arbitration  cannot  be  sustained  as  one  made  under  the  statu; 
the  courts  will  give  full  effect  to  an  award  thus  made.  Myers  v.  Easterwood, 
60  T.  luT. 

A  submission  by  a  guardian  of  his  ward's  liability  is  only  voidable:  if  the  re- 
sult is  beneficial  to  the  ward,  he  may  avail  himself  of  it  as  a  defense.  Wiley  v. 
Heard,  1  App.  C.  C.,  S  rjul. 

Where  a  recovery  of  land  is  based  on  the  report  of  a  referee  to  whom  the  par- 
ties had  agreed  to  submit  the  question  of  the  true  location  of  a  line,  with  a 
stipulation  that  the  referee  should  examine  that  line,  an  an-\vi>r  charging  that 
the  referee  did  not  examine  the  line  is  good  on  demurrer;  nor  is  the  fact  mate- 


716  ARBITRATION   AT   COMMON   LAW.  [§§  758,  759.. 

§  758.  Award  must  pursue  the  agreement. 

The  rules  governing  proceedings  under  the  statute  will  in  gen- 
eral apply  to  arbitration  at  common  law.  The  power  of  the  arbi- 
trators is  dependent  upon  the  terms  of  the  agreement,  which  must 
be  strictly  pursued,  even  in  respect  of  slight  formalities.  When 
the  submission  was  to  six  arbitrators,  and  the  award  was  signed 
by  five  only,  it  was  held  that  it  was  null  and  void.1  When  the 
submission  required  an  award  under  hand,  and  the  award  was  not 
signed,  though  under  seal,  it  was  held  to  be  void.2  So,  if  the  award 
was  required  to  be  under  seal,  and  it  be  only  signed;8  and  even 
where  the  award  was  to  be  made  by  four  arbitrators,  or  any  three 
of  them,  and  the  award  purported  to  be  made  by  the  four,  and 
was  only  signed  by  three,  it  was  held  void.4  But  where  an  award, 
after  reciting  that  A.  B.  and  C.  D.  had  been  appointed  arbitrators^ 
and  that  they  had  appointed  E.  F.  umpire,  proceeded :  "  We,  the 
said  arbitrators,  do  award,"  etc.,  and  was  signed  by  the  two  arbi- 
trators and  the  umpire,  it  was  held  that  the  latter,  by  signing  the 
award,  had  adopted  the  language  as  his,  and  that  the  arbitrators 
joining  in  the  award  would  not  prejudice.5 

§759.  Authority  of  arbitrators. 

The  arbitrators  may  designate  their  own  time  of  meetings  ana 
adjournments.  As  their  proceedings  are  without  the  authority  of 
any  statute,  having  no  force  except  by  the  agreement  and  consent 
of  the  parties,  they  cannot  be  sworn;  neither  is  there  any  process 
for  compelling  the  attendance  of  a  witness ; 6  consequently  when  the 
parties  disagree  as  to  the  facts,  and  rely  for  their  proof  upon  the 
testimony  of  witnesses,  the  only  effectual  mode  of  proceeding  is 
under  the  statute.  And,  indeed,  in  all  respects  is  the  statutory 
proceeding  preferable,  in  providing  that  the  arbitrators  shall  act 
under  oath,  insuring  the  attendance  of  witnesses,  and  making  the 
decision  of  the  arbitrators  final  or  subject  to  revision  at  the  option 
of  the  parties.7 

rial  that  the  report  of  the  referee  shows  that  he  made  the  examination  as  re- 
quired. An  objection  to  the  report  that  the  referee  could  only  act  in  the  event 
another  first  chosen  declined  to  act,  and  that  his  report  or  award  could  not  be 
received  until  it  was  shown  that  the  one  first  selected  declined  to  act,  comes  too 
late  when  made  for  the  first  time  on  appeal.  An  allegation  that  a  referee 
refused  to  hear  evidence  offered  by  one  of  the  parties,  without  stating  the 
materiality  of  the  evidence,  and  what  it  was,  is  bad  on  exception.  A  report 
made  by  a  referee  stands  upon  the  same  footing  as  the  verdict  of  a  jury.  Elder 
v.  McLane,  60  T.  383;  McHugh  v.  Peck,  29  T.  141. 

1  Owens  v.  Withee,  3  T.  161. 

2  2  Mars.  304;  3  M.  &  S.  512. 
s  2  Chit  Gen.  Pr.  105. 

<1  Sim.  &Str. 
6  9  Bar.  &  C.  407. 
*  2  Chit.  Gen.  Pr.  98. 
'R  S.  50,  51,  56,  57. 


§  760.]  ARBITRATION   AT   COMMON    LAW.  717 

£  760.  Award,  how  enforced. 

If  the  award  is  made  under  a  rule  of  reference  by  the  court,  it 
can  be  enforced  by  the  judgment  of  the  court  in  accordance  with 
the  agreement  of  the  parties.1  If  the  agreement  does  not  provide 
for  making  the  award  the  judgment  of  the  court,  or  if  it  was  not 
made  pending  an  action,  it  can  only  be  enforced  by  a  suit  for  the 
recovery  of  the  amount  of  the  award  as  liquidated  damages.  When 
either  party  refuses  to  proceed,  the  remedy  of  the  party  aggr; 
is  by  an  action  upon  the  agreement.2 

1  Owens  v.  Withee,  3  T.  161. 

8  Swift  v.  Fans,  11  T.  18.  A  party  will  not  be  heard  to  complain  that  the  ar- 
bitrators overlooked  certain  items  of  damage,  where  the  oversight  is  attribu- 
table to  hi?  own  negligence  in  calling  attention  to  the  matter.  H.  &  T.  C.  Ry. 
Co.  v.  Newman,  2  App.  C.  C.,  §  349;  Rector  v.  Hunter,  15  T.  380.  Parties  selected 
one  arbitrator,  and  directed  him  to  examine  an  injured  horse  and  decide 
whether  he  was  permanently  injured,  and  it  was  alleged  that  one  of  the  parties 
informed  him  as  to  the  ownership  of  the  horse,  and  for  what  purpose  the  ex- 
amination was  made,  contrary  to  the  agreement  It  was  held  that  this,  if  true, 
avoided  the  award.  Wiley  v.  Heard,  1  App.  C.  C.,  §  1805. 


CHAPTER  LIII. 


SUBSTITCTTION  OF  LOST  RECORDS  AND  PAPERS. 


761.  Supplied  on  motion. 

763.  Requisites  of  motion. 

763.  Procedure :  admission  and  proof 

of  correctness  of  copy;  right 

of  adverse  party. 


§  764.  Substitution  by  consent  of  par- 
ties. 
765.  Lost  judgments  supplied. 


§  761.  Supplied  on  motion. 

"Whenever  the  records  and  papers  of  a  cause,  or  any  part  thereof > 
may  be  lost  or  destroyed,  either  before  or  after  the  trial,  they  may 
be  supplied  by  either  party,  on  motion  before  the  court,  upon  three 
days'  notice  to  the  adverse  party  or  his  attorney.1 

The  destruction  of  papers  does  not  of  itself  take  a  cause  out  of 
court,  but  an  order  to  that  effect  must  be  entered  up.  It  is  pri- 
marily the  duty  of  the  plaintiff  to  make  the  substitution,  as  it  is  to 
his  interest  that  the  cause  should  proceed.2  The  order  substituting 
lost  papers  must  be  made  upon  competent  evidence.3 

The  statute  is  cumulative  in  its  character,  and  does  not  furnish 
the  only  mode  by  which  lost  depositions  or  other  lost  evidence  of  a 
like  character  may  be  substituted.  Evidence  of  a  witness  taken  by 
deposition,  incorporated  in  a  statement  of  facts,  and  signed  by  op- 
posing counsel,  the  deposition  being  afterwards  lost,  may  be  used 
on  a  subsequent  trial  between  the  same  parties,  it  being  shown  that 
the  witness,  though  still  alive,  has  become  blind.4  Lost  judgments 
and  executions  may  be  supplied,  by  parties  to  the  suit  in  which 
they  were  rendered  or  issued,  by  motion  under  this  statute;  the 
provisions  of  article  4594  et  seq.  of  the  Revised  Statutes  are  cumu- 
lative, and  the  remedy  is  given  to  parties  to  the  suit  and  others 
who  may  be  interested.5 

An  order  supplying  a  lost  bill  of  exceptions,  made  at  a  term  sub- 
sequent to  that  at  which  final  judgment  was  rendered,  and  without 
notice  to  the  adverse  party  or  his  attorney  of  the  motion  to  supply 

1  R.  S.  1498. 

2  Bender  v.  Lockett,  64  T.  566. 

3  Bowles  v.  Glasgow,  2  U.  C.  714 

4  Houston  v.  Blythe,  60  T.  506.    And  see  Dwyer  v.  Bassett,  1  Civ.  App.  513  (21 
S.  W.  Rep.  621). 

*  Hayden  v.  Dunaway,  29  S.  W.  Rep,  529. 


'53.]  SUBSTITfTIOX   OF   LOST   RECOBDS,  ETC.  719 

the  lost  paper,  is  of  no  effect.    Such  substituted  paper  will  not  be 
considered  on  appeal.1 

5  762.  Motion,  requisites  ot. 

A  motion  to  supply  lost  papers  must  be  in  writing,  signed  by  the 
party  or  his  attorney,  and  verified  by  affidavit.  It  must  state  the 
loss  or  destruction  of  the  record  or  papers,  and  must  be  accom- 
panied by  certified  copies  of  the  originals,  if  they  can  be  had,  and 
if  not,  then  substantial  copies  thereof,  as  near  as  may  be.1 

A  lost  pleading  cannot  be  substituted  by  an  amendment.  The 
rules  require  that  all  amendments,  with  the  exception  of  trial 
amendments,  shall  be  substituted  for  some  previous  pleading.  To 
determine  whether  or  not  it  is  such  substitute,  it  is  necessary  that 
the  court  should  have  access  to  the  former  pleading.  If  pleading 
could  be  supplied  simply  by  amendment,  without  affidavit  or  cer- 
tificate as  to  the  lost  paper,  the  statute  would  be  in  effect  a  nullity.1 
Where  a  party  on  appeal  relies  upon  the  contents  of  a  lost  pleading 
to  show  error  in  the  rulings  below,  he  must  resort  to  the  proper 
remedy  to  substitute  such  lost  pleading.4  Lost  depositions  may  be 
supplied.* 

A  motion  to  substitute  a  lost  judgment  and  executions,  which 
fails  to  set  out  a  copy  or  copies  of  the  record,  may  be  amended, 
without  reference  to  whether  such  amendment  would  be  allowed 
by  the  rules  prescribed  by  the  supreme  court  or  not.  "Where  the 
motion  contains  all  the  information  necessary  to  enable  the  court 
to  grant  relief,  copies  of  the  record  required  by  the  statute  muv  be 
1  with.  It  is  sufficient  if  the  substantial  parts  of  the  lost 
record  be  stated  in  the  body  of  the  motion.' 

"63.  Procedure;  admission  and  prool  oi  correctness  01  copies; 
right  of  adverse  party. 

If  the  adverse  party  admit  the  correctness  of  the  copies  furnished 
bv  the  applicant,  and  the  court  be  satisfied  that  they  are  correct 
copies  in  substance  of  the  originals,  an  order  will  be  made  substi- 
tuting such  copies  for  the  originals.  If  their  correctness  be  n- 
nutted,  or  if  the  court  do  not  find  them  to  be  correct,  the  parties 
must  submit  their  respective  statements  to  the  judge,  and  he  will 
hear  proof  as  to  the  contents  of  such  lost  records  and  papers,  and 
•  •ct  copies  thereof  must  be  made  under  the  direction  of  the 
judge.  The  adverse  party  may,  in  the  same  proceedings,  supply 
any  other  portions  of  such  records  and  papers  desired  by  him.7 

i  Harvey  v.  Carroll,  72  T.  63  (10  S.  W.  Rep.  334> 

»  R.  a  1499. 

'Newman  v.  Dodson,  61  T.  91.    See  Rule  13. 

« Strauber  v.  Waller.  2  U.  C.  622. 

s  Jury  v.  Shearman.  2  U.  C.  201. 

•  Hay  den  v.  Dunaway.  2«J  a  W.  Rep.  529. 

'  R.  &  1500-1502, 


720  SUBSTITUTION   OF   LOST   KECORDS,  ETC.  {§§  764,  765. 

g  764.  Substitution  by  consent  of  parties. 

The  parties  may,  by  consent  in  writing,  with  the  approval  of  the 
judg?,  agree  on  a  brief  statement  of  the  matters  contained  in  lost 
records  and  papers,  and  the  court  may  by  an  order  substitute  such 
•statement  for  the  lost  originals.  Such  substituted  copies,  or  brief 
statement  of  their  contents,  as  the  case  may  be,  are  filed  with  the 
•clerk,  and  constitute  a  part  of  the  record  of  the  cause,  and  have  all 
the  force  and  effect  of  the  originals.1 

§765.  Lost  judgments  supplied. 

Judgments  of  courts  of  record,  including  judgments  of  the  county 
•court,  which  have  been  lost,  destroyed  or  carried  away,  may  be  sup- 
plied by  parol  proof  of  their  contents  on  application  to  the  court  to 
which  the  original  record  belonged.  The  application  must  be  made 
in  writing,  stating  the  facts,  and  the  clerk  will  issue  a  citation  to 
the  party  or  parties  adversely  interested,  or  their  heirs  and  legal 
representatives,  such  citation  to  be  served  as  in  other  cases.  If  the 
court  is  satisfied  on  the  hearing  of  the  existence  of  the  alleged  judg- 
ment, order  or  decree,  and  of  the  loss  or  destruction  of  the  same,  an 
order  will  be  entered  to  that  effect,  containing  a  description  of  the 
lost  judgment  and  the  contents  thereof,  a  certified  copy  of  which 
order  may  be  recorded  in  the  proper  county.  The  judgment  of  the 
court,  when  duly  entered,  stands  in  the  place  of  the  original,  and 
when  recorded  may  be  used  in  evidence  the  same  as  the  original. 
Judgments,  orders  and  decrees,  when  substituted  as  provided,  carry 
all  the  rights  thereunder  in  every  respect  as  the  originals,  especially 
preserving  the  liens  from  the  date  of  the  originals,  and  giving  the 
parties  the  right  to  issue  executions  under  the  substituted  judgments 
as  under  the  originals. 

The  above  proceedings  include,  also,  deeds,  bonds,  bills  of  sale, 
mortgages,  deeds  of  trust,  powers  of  attorney,  and  conveyances  of 
any  and  every  description  which  are  required  or  permitted  by  law 
to  be  acknowledged  or  recorded,  and  which  have  been  so  acknowl- 
edged or  recorded.2 

A  written  contract  between  a  city  and  a  railway  company  whereby 
the  latter  agreed  for  a  specified  consideration  to  locate  its  shops  and 
perpetually  maintain,  its  domicile  and  shops  within  the  limits  of  the 
city  is  not  an  instrument  which,  being  lost,  can  be  supplied  under 
the  provisions  of  the  statute.  Evidence  of  the  contents  of  such  lost 
instrument  may  be  perpetuated  by  proceeding  under  the  statute  to 
take  depositions  of  witnesses,  and  in  such  a  proceeding  it  is  only 
important,  so  far  as  relates  to  proper  parties,  that  the  plaintiff  has 
an  interest  and  that  the  defendants  are  supposed  to  be  adversely 

1  R  S.  1503, 1504 

2  R  S.  4594,  4601. 


§  7G.">.]  8UIJVIITI TMN    ..F    LOST    RECORDS,  ETC.  7lM 

interested.     Such  written  contract  was  an  instrument  which  under 
tin'  statute  might  have  been  recorded.1 

The  statute  is  cumulative;  it  does  not  prohibit  a  person  from  set- 
ting up  a  lost  record  and  proving  its  contents  as  at>  common  law.-' 
A  proceeding  to  substitute  a  lost  judgment  is  barred  in  four  years.' 
The  venue  prescribed  by  the  above  statute  does  not  apply  in  suits 
to  establish  lost  originals.4 

i  St  L.,  A.  &  T.  Ry,  Co.  v.  Harris,  73  T.  375  (11  S.  W.  Rep.  406). 

'Johnson  v.  Skipworth,  59  T.  473;  Taylor  v.  Pridgen,  3  App.  C.  G,  §  92;  Phelan 
v.  Wiley,  2  App.  G  C.,  §  735;  Craddock  v.  Scarborough,  54  T.  346. 

a  Phelan  v.  Wiley,  2  App.  G  C.,  g  735. 

« Douglas  v.  Baker,  79  T.  499  (15  S.  W.  Rep.  801).  The  proceeding  provided  by 
this  statute  is  cumulative,  and  is  given  not  only  to  parties  to  the  suit,  but  to 
"any  person  having  an  interest  in  "  the  lost  deed,  judgment,  etc.  It  affords  to 
persons  other  than  parties  to  a  suit  a  remedy  by  which  to  reproduce  lost  records 
in  which  they  are  interested,  and,  while  parties  to  the  suit  in  which  the  lost 
judgment  was  rendered  may  doubtless  resort  to  the  remedy  provided  by  this 
statute,  they  are  not  required  to  do  so,  but  may  proceed  under  articles  1498  and 
1499  of  the  Revised  Statutes  (§§  761,  762,  supra).  Hayden  v.  Dunaway,  29  S.  W. 
Rep.  529. 

46 


CHAPTER  LIY. 


COMPUTATION  OF  TIME. 


§  7G6.  Rules  as  to  computation  of  time. 

767.  Rule  where  time  is  computed 
within  certain  days,  or  from  a 
certain  day. 

763.  Sunday  included  in  the  compu- 
tation of  statute  time. 


§  769.  Rule  where  notice  is  required  to 
be  given  a  certain  number  of 
days. 

770.  A  day  is  in  general  indivisible. 

771.  The  term  "  week  "  defined. 

772.  The  term  "month"  defined. 


§  766.  Rule  as  to  the  computation  of  time. 

There  is  great  uncertainty  as  to  the  rule  to  be  adopted  in  the 
computation  of  time,  and  none  has  been  laid  down  which,  within 
itself,  furnishes  a  certain  and  safe  guide.1  In  the  case  of  O'Connor 
v.  Towns,2  it  is  said  that,  whether  the  day  on  which  an  act  was 
done,  or  an  event  happened,  is  to  be  included  or  excluded,  must  de- 
pend upon  the  circumstances  and  the  reason  of  the  thing,  so  that 
the  intention  of  the  parties  may  be  effected.  Such  a  construction 
should  be  given  as  would  operate  most  to  the  ease  of  parties  en- 
titled to  favor,  and  by  which  rights  would  be  secured,  and  forfeit- 
ures avoided.3  In  the  case  of  Lester  v.  Garland,4  it  is  suggested 
that  the  act  done  from  which  the  computation  is  made  inclusive  of 
the  day  is  an  act  to  which  the  party,  against  whom  the  time  runs, 
is  privy ;  and  as  he  has  unquestionably  the  benefit  of  some  portion 
of  the  day,  there  is  less  hardship  in  constructively  reckoning  the 
whole  of  it  as  a  part  of  the  time  allowed  him ;  but  the  day  ought 
not  to  be  included  when  the  event  was  one  totally  foreign  to  the 
party,  whose  time  for  deliberation  was  to  begin  to  run  from  that 
event.  But  this  distinction  does  not  apply  to  cases  previously  de- 
cided, nor  is  it  observed  in  subsequent  cases.5 

1  Angell  on  Limitations,  ch.  6;  State  v.  Asbury,  26  T.  82. 

21  T.  107;  Dowell  v.  Vinton,  1  App.  C.  C.,  §  328. 

3  An  indictment  for  an  offense  which  the  law  required  to  be  prosecuted  within 
two  years  after  its  commission  was  found  on  the  1st  day  of  January,  1857,  and 
charged  the  offense  to  have  been  committed  on  the  1st  day  of  January,  1855. 
It  was  held  that  under  the  rule  stated  in  O'Connor  v.  Towns,  1  T.  107,  the  day 
of  the  commission  of  the  offense  was  to  be  included  in  the  computation,  and 
that  the  prosecution  was  not  commenced  in  time.  State  v.  Asbury,  26  T.  82. 
Where  a  person  was  born  April  17, 1860,  it  was  held  that  he  became  of  age  April 
16, 1881,  and  that  a  suit  filed  on  April  16, 1886,  for  land  held  adversely,  was  too  late 
under  the  five  year-statute.  It  should  have  been  filed  April  15.  Ross  v.  Mor- 
row, 85  T.  172  (19  S.  W.  Rep.  1090);  Phelan  v.  Douglass,  11  How.  Pr.  Rep.  193. 

4 15  Vesey,  Jr.,  248. 

8Gorst  v.  Lowndes,  11  Sim.  434;  Arnold  v.  United  States,  9  Cranch,  104;  Henry 


•?    7rt~.]  OOMITTATION*    OF    TIM  7  •_•.", 

The  rule  adopted  in  computing  the  age  of  a  person  is  tliat  the 
<lay  of  his  l>irth  is  included,  and  on  the  day  before  his  tweiitv-tiot 
anniversary  he  is  held  to  be  twenty-one  years  old.1 

•  i7.  Rule  where  time  is  computed  within  certain  days,  or  from  a 
certain  day. 

NVhere  two  periods  are  fixed  within  which  an  act  may  be  done,  it 

general  rule  that  it  may  be  done  on  any  intervening  <lav. 

i-e  the  time  is  to  be  computed  from  and  after  a  certain  dav  the 
rule  is  to  exclude  that  day,-  especially  when  such  exclusion  will  pre- 
vent an  estoppel  or  save  a  forfeiture.3  It  has  been  held  that /'/•<//// 
a  certain  day  will  be  construed  to  mean  either  "inclusive"  or 
elusive"  of  the  day  named,  for  the  purpose  of  supporting  any 
fide  title  or  transaction.  Thus,  where  a  statute  provided  that  a 
s^ile  under  execution  of  lands  of  a  decedent  could  not  be  made  until 
eighteen  months  after  letters  of  administration  had  been  granted, 
and  letters  were  granted  on  the  1st  day  of  November,  181'.'.  it  was 
held  that  a  sale  made  on  the  1st  day  of  May,  1821,  was  in  compli- 
ance with  the  statute.  By  this  computation  the  day  «  y>i»  is  in- 
cluded. Whether  it  should  be  included  has,  it  is  said,  been  a  \  • 

v.  Jones,  8  Mass.  453;  Portland  Bank  v.  Maine  Bank,  11  Mass.  204;  Bigel»\\  \. 
WilUon,  1  Pick.  485;  Wiggin  v.  Peters,  1  Met  127;  Homan  v.  I.iswvll,  6  Cow. 
659;  Ex  parte  Dean,  2  Cow.  605;  People  v.  Sheriff  of  Broome,  19  W, -nd.  »::  Bank 
of  Oswego  v.  Ives,  2  Hill,  355;  Sims  v.  Hampton,  1  S.  &  R.  411:  I.v>l.   v.  Will- 
iams, 15  S.  &  R.  13o;  Smith  v.  Cassity,  9  B.  Mon.  192;  Pearpoint  v.  (ira! 
Wash.  C.  C.  232;  Cornell  v.  Moulton,  3  Den.  12;  State  v.  Sc-hnii-rie.  5  Ki. 
See,  also,  Dyer,  218:  Moore,  40;  2  Inst  674:  5  Rep.  1;  id.  90;  Cr...  .lac.  ; 
1  Kulst.  177;  3  Bulst.203;  1  Co.  Lit.  466:  Styles,  118;  Alleyn,  77;  1  Ld.  Raym.  *4: 
;  id.  480;  Cowp.  721;  2  Ld.  Raym.  1242;  2  Wils.  165;  10  East,  4V 7:  14  M. 
&  W.  581 ;  2  Camp.  394, 

•Ross  v.  Morrow,  85  T.  172  (19  a  W.  Rep.  1090);  Phelan  v.  Douglass,  11  How. 
Pr.  Rep.  193. 

1  v.  Kerr,  78  T.  213  (14  &  W.  Rep.  566);  Hunter  v.  Lanius,  82  T.  67  T  -  &  W. 
Rep.  201):  Phelan  v.  Douglass,  11  How.  Pr.  Rep.  193;  Lubbock  v.  Cook.  49  T.  96; 
Speer  v.  State.  2  App.  246.  Where  by  statute  an  appeal  was  perfect* -.1  l.y 
giving  an  appeal  bond  within  twenty  days  after  the  term,  it  was  held  that 
where  the  court  closed  on  the  16th  day  of  July  the  twenty  days  expired  on  the 
5th  of  August  Burr  v.  Lewis,  6  T.  76;  Back  v.  Ginacrln...  i  App.  r.  <'..  =;  i:U\ 
So  where  two  years  were  allowed  from  the  rendition  of  judgment  for  tli- 
out  of  a  writ  of  error,  the  day  on  which  judgment  was  rendered  was  excluded. 
Lubbock  v.  Cook,  49  T.  96.  Where  the  law  provided  that  field-notes  withdrawn 
from  the  land  office  should  be  returned  within  twelve  months  from  tl 
day  of  November,  1871.  it  was  held  that  field-notes  returned  on  tin-  vMtth  day  of 
November,  1872,  were  in  time.  Hill  v.  K-IT.  >  T.  218(14  S.  W.  I:  When 

it  is  required  that  suit  be  brought  against  an  administrator  on  .-. 
within  ninety  days  after  such  rejection,  the  day  of  r.-jr<'ti'. n  is  »-\<  lud-d.  Hunt-r 
\V.  Rep.  201).    And  see  Schwartz  v.  l.il,,-r!ii.-in.  -,'  App. 
C.  C.,  g  289. 

»Dow,-ll  v.  Vinton.   1    App.   (.'.  C  rin«  Win 

i   Ala.  :!11. 
1  ..  On:   V.\.,-ks  v.  Hull,  19  Conn.  376;  Cornell  v.  Muni: 


724-  COMPUTATION    OF   TIME.  [§  70S. 

<H  ration  for  many  centuries,  both  among  learned  doctors  of  the 
civil  law  and  the  courts  of  England  and  of  this  country.  But  it  is 
said  that  in  common  and  popular  usage  the  day  a  quo  has  always 
been  included,  and  that  such  has  been  the  general  rule  both  of  the 
Roman  and  the  common  law.  The  rule  laid  down  by  Lord  Mans- 
field, in  Pugh  v.  Leeds,  Cowp.  714,  is  "  that  courts  of  justice  ought 
to  construe  the  words  of  parties  so  as  to  effectuate  their  deeds,  and 
not  destroy  them;  and  that  from  a  date  may,  in  vulgar  use,  and 
even  in  strict  propriety  of  language,  mean  either  inclusive  or  ex- 
clusive." But  it  is  said  that  every  case  must  depend  upon  its  own 
circumstances.  Where  the  construction  of  the  language  of  a  stat- 
ute is  doubtful,  courts  will  always  prefer  that  which  will  confirm 
rather  than  destroy  any  bona  fide  transaction  or  title.  The  inten- 
tion and  policy  of  the  statute  should  be  sought  for  and  carried  out. 
Courts  should  never  indulge  in  nice  grammatical  criticism  of  prep- 
ositions or  conjunctions,  in  order  to  destroy  rights  honestly  ac- 
quired.1 It  has  been  held  that  where  the  expressions  in  contracts 
and  other  instruments  are  from  the  date,  the  rule  is  that  if  a  present 
interest  is  to  commence  from  the  date,  the  day  of  the  date  is  in- 
cluded; but  if  they  are  used  merely  to  fix  a  terminus  from  which 
to  compute  time,  the  day  is  in  all  cases  excluded.2 

§  768.  Sunday  included  in  the  computation  of  statute  time. 

In  the  computation  of  statute  time,  as  where  it  is  directed  that 
an  act  shall  be  done  within  a  certain  number  of  days,  Sunday  is  in- 
cluded, although  it  should  be  the  last  day.  Thus,  where  the  last- 
day  of  the  t \venty  days  allowed  to  file  an  appeal  bond  fell  on  a 
Sunday,  and  the  bond  was  filed  on  Monday,  the  next  day,  it  was 
not  in  time.3  In  the  construction  of  their  own  rules  of  practice, 
courts  generally  exclude  Sunday  in  the  computation  of  time.4  In 
Xew  York  it  has  been  held,  if  the  last  day  of  the  term  for  putting 
in  bail  and  pleading  be  Sunday,  the  defendant  has  the  next  day.5 

1  Griffith  v.  Bogert,  18  How.  (U.  S.)  158,  28  Myer's  Fed.  Dec.,  p.  31.    Where  a 
debtor  made  an  assignment  for  the  benefit  of  such  creditors  as  would  release 
their  debts  in  sixty  days  from  the  date  of  the  assignment,  that  date  was  ex- 
cluded in  making  the  computation.     Pearpoint  v.  Graham,  4  Wash.  232.    So 
where  privileges  under  a  lease  were  to  be  forfeited  if  the  rent  should  remain  un- 
paid for  one  month  after  it  became  due,  it  was  held  that  rent  falling  due  on  the 
first  day  of  the  month  could  be  paid  the  first  day  of  the  succeeding  month. 
Sheets  v.  Selden,  2  Wall.  177,  28  Myer's  Fed.  Dec.,  p.  34. 

2  Pearpoint  v.  Graham,  4  Wash.  232,  28  Myer's  Fed.  Dec.,  p.  34 
8  Burr  v.  Lewis,  6  T.  76. 

4  Burr  v.  Lewis,  6  T.  76. 

5 Cook  v.  Bunn,  6  Johns.  326;  Borst  v.  Griffin,  5  Wend.  84;  Anon.,  2  Hill,  3T.;. 
Where  a  debtor  made  an  assignment  for  the  benefit  of  such  creditors  as  would 
release  their  debts  in  sixty  days  from  the  date  of  the  assignment,  it  was  held 
that  the  sixtieth  day,  excluding  the  day  of  the  assignment,  falling  on  a  Sunday, 
a  release  on  the  sixty-first  day  was  too  late.  It  should  have  been  made  on  the 
sixtieth  or  some  preceding  day.  Pearpoint  v.  Graham,  4  Wash.  232. 


.~7".J  N-  of  TIV  7  -'."> 

139.  Rulo  whore  notice  is  required  to  be  given  a  certain  number 
of  days. 

When  a  statute  or  rule  of  court  requires  notice  to  be  given  a  cer- 

tain number  of  ,-/,-</•  days,  they  are  exclusive  both  of  tin.-  <l 

.Mi,r  the  notice  and  of  the  day  of  the  proceeding  for  which  the 

noti'  ii.     The  act  of  1^40  required  writs  to  be  executed  at 

live  days  before  the  return  day  thereof;  and  under  that  stat- 

.t   was  held  that  the  day  ol'  service  and  the  day  of  the  c-nu- 

'•ment  of  court  were  both  excluded.1     When  a  thing  is  ord'  n  d 

by  a  particular  day,  that  day  is  excluded.* 

It  seems  that  where  an  act  is  to  be  performed  at  a  certain  hour 
of  the  day,  e.  <j.,  at  10  o'clock,  it  is  10  o'clock  until  it  is  11  o'clock. 
So  if  a  nif.-ting  is  to  be  held,  a  vote  taken,  or  a  sale  made  at  4'» 
o'clock,  either  may  be  done  at  any  time  after  10  o'clock  and  before 
II.1  Where  an  act  is  to  be  done  after  a  certain  number  of  days, 
thirty,  for  example,  it  cannot  be  performed  until  the  thirty-tirst 
day,  excluding  the  day  a 


70.  A  day  is  in  general  indivisible. 
As  a  general  rule,  a  day  is  a  sort  of  indivisible  point,  and  an 

in  the  compass  of  it  is  no  more  referable  to  any  one  than  to 
any  other  portion  of  it;  but  the  act  and  the  day  are  co-ex  tei. 
This  fiction,  however,  is  rejected  whenever  it  becomes  essential  for 
the  purposes  of  justice  to  ascertain  the  exact  hour  or  minute. 

•••r  means  twenty-four  hours  *  It  is  said  to  be  a  general  rule 
that  the  law  takes  no  account  of  fractional  parts  of  a  day  in  the 
computation  of  time.6  But  this  is  also  held  to  be  a  mere  legal  fic- 
tion, and  true  only  sub  modo  and  in  a  limited  sense,  where  it  will 
promote  the  right  and  justice  of  the  case.7  The  rule  is  chiefly 
known  by  its  exceptions.  When  private  rights  depend  upon  it,  the 
courts  inquire  as  to  the  hour  at  which  an  act  was  done,  or 

••nteivd,  or  an  attachm  -nt  was  laid,  or  any  title  accrued/  Hut 
although  divisions  of  a  day  are  allowed  to  make  priorities  in  ques- 
tions concerning  private  acts,  it  is  held  that  they  are  not  all< 

1  O'Connor  v.  Towns,  1  T.  107.    The  law  now  requires  that   tin-  citation   I.,- 
:  nt  l.-ast  t..>n  days  before  the  first  day  of  the  n-turn  term,  rxrhisiv.-  ..1  tin- 
atxl  ivtiirn.  &     Sunday  is  counted.    Wood  v.  City  ut 

M  T.  1  •-'»:.  l=iS.  \V.  Ri'p. 
„'.  on  Limitations,  ch.  ft, 

»  In  re  Gilley.  a  Low.  (U.  &  C.  C.)  2:.-».  js  Myer's  Fed.  Dec.,  p.  3fl. 
«Dowell  v.  Vint-.n,  1  A  pp.  C.  C.,  §  381. 
"•  An«.  <>n  Limitations,  ch.  8. 

•Speer  v.  State,  2  A  pp.  .'10;  Dowell  v.  Vinton,  1  App.  C.  C.,  §  331;  McC.ill  v. 
Bank  of  the  f.  S..  12  Wlu-at.  ~»l  1. 
"  In  re  Richardson.  2  Story.  571. 

bM  v.  (iilman.  11   Fled  R.-p.  Oil;   L-ui-vill,-  v.  Savings  Bank.  II  ntt 
:t  v.  Hill.  1  \V  .....  1>.  508;   Nati.mal  Hank  v.  Uurkhurdt.  10  Otto,  086;  1' 
v.  Marine  Ins.  Co.,  0  Maso:.  My.  -rs  Fed.  Dec.,  pp.  :i».  33,  38, 


COMPUTATION   OF   TIME.  [§§  771,  772. 

to  make  priorities  in  questions  concerning  public  acts,  such  as  legis- 
lative acts  or  public  laws.1 

A  statute  forbidding  an  act  to  be  done  on  a  particular  day  means 
the  natural  day  of  twenty-four  hours,  from  midnight  to  midnight.2 

§  771.  The  term  "  week  "  defined. 

A  week  is  held  to  be  a  definite  period  of  time,  commencing  on 
Sunday  and  ending  on  Saturday.  Where  notice  is  required  to  be 
published  once  a  week,  for  several  weeks  or  months,  it  is  sufficient 
if  the  notice  is  published  once  during  each  week,  though  more  than 
seven  days  may  intervene  between  any  two  publications.  Thus, 
where  notice  was  published  Monday,  January  6,  and  was  omitted 
until  Saturday,  January  18,  leaving  an  interval  of  eleven  days,  still 
the  publication  on  Saturday  was  within  the  week  succeeding  the 
notice  of  the  6th,  and  was  held  sufficient.3  But  the  full  time  of 
seven  days  for  each  week  of  service  must  elapse  between  the  day 
when  the  notice  is  first  published  and  the  return  day.4 

§•772.  The  term  "month"  defined. 

When  months  are  mentioned  in  a  statute,  they  are  to  be  consid- 
ered lunar,  unless  words  are  used  which  show  that  calendar  months 
were  intended.  In  respect  to  bills  of  exchange,  promissory  notes, 
and  other  mercantile  contracts,  a  month,  in  all  cases,  means  a  cal- 
endar month,  by  the  law  merchant.5  Where  a  law  directs  publica- 
tion of  notice  for  two  months  successively,  it  is  held  that  calendar 
months  are  intended.0  And  where  an  act  extended  certain  charters 
six  months,  the  word  months  was  held  to  mean  calendar  months.7 

1  In  re  Welraan,  7  L.  Eep.  25,  20  Vt.  653,  28  Myer's  Fed.  Dec.,  p.  34.     It  was  held 
in  tliis  case  that  an  act  of  congress  repealing  the  bankrupt  law,  passed  March  3, 
1843,  having  been  signed  by  the  president  late  in  the  evening  of  that  day,  a  pe- 
tition in  bankruptcy  presented  on  the  same  day  was  too  late.     The  contrary 
ruling  is  made  in  In  re  Richardson.  2  Story,  571,  28  Myer's  Fed.  Dec.,  p.  35.    And 
see  Myer  on  Vested  Rights,  §§  55-58. 

2  Pulling  v.  People,  8  Barb.  384. 

3  Ronkendorf  v.  Taylor,  4  Pet.  349.    See  In  re  King,  7  National  Bank.  Reg.  270. 

4  A  citation  for  publication,  where  three  weeks'  publication  was  required, 
was  published  on  13th,  20th  and  27th  of  November,  and  judgment  was  rendered 
on  the  4th  of  the  succeeding  month;  and  it  was  held  that  the  service  was  in- 
complete, and  that  judgment  could  not  properly  have  been  rendered  before  the 
5th  of  the  month.    Hill  v.  Faison,  27  T.  428.    See  the  chapter  on  CITATION  BY 
PUBLICATION. 

5  Ang.  on  Lim.,  ch.  6;  Highsmith  v.  Ussery,  25  T.  Sup.  93;  Sheets  v.  Selden, 
2  Wall.  177.    When  a  bill  is  drawn  payable  so  many  months  after  date,  the  com- 
putation is  made  by  the  calendar,  and  (without  counting  the  days  of  grace)  the 
bill  will  become  due  on  the  day  of  the  month  corresponding  with  the  day  of 
the  date.    A  bill  dated  on  the  1st  of  November,  1857,  and  payable  eleven  months 
after  date,  was  due,  including  the  days  of  grace,  on  the  4th  day  of  October, 
1858;  excluding  them,  it  was  due  on  the  1st  day  of  October.    Highsmith  v. 
Ussery,  25  T.  Sup.  93;  Moore  v.  Holliman,  25  T.  Sup.  81. 

6  Hunt  v.  Wickliff e,  2  Pet  201. 

"  Union  Bank  of  Georgetown  v.  Forrest,  3  Cranch,  C.  C.,  21& 


CHAPTER  LV. 


AFFIDAVITS,  OATHS  AND  AFFIRMATIONS. 


X  Form;  affidavits  to  be  in  writ- 
ing, etc. 


§  774  Affidavit  may  be  made  by  agent 

or  attorney. 
775.  Who  may  administer. 


§  773.  Form;  affidavits  to  be  in  writing,  etc. 

All  oaths  ami  affirmations  must  be  administered  in  the  mode  most 
binding  upon  the  conscience  of  the  individual  taking  the  same,  and 
are  taken  subject  to  the  pains  and  penalties  of  perjury.1  Affidavits 
must  be  in  writing,  and  must  be  signed  by  the  person  making  the 
same.2  "Oath,"  when  used  in  a  statute,  includes  "affirmations," 
and  "swear"  or  "sworn"  includes  "affirm."  "Signature"  or  "sub- 
scribe "  includes  the  mark  of  a  person  unable  to  write.1 

An  affidavit  is  a  statement  or  declaration  of  some  particular  per- 
son, rcdurril  to  writing,  and  sworn  or  affirmed  to  before  some  officer 
who  has  authority  to  administer  an  oath,  and  it  must  in  itself  show 
that  it  is  the  individual  oath  of  the  person  swearing  thereto.4 

The  use  of  initial  letters,  or  parts  of  words,  by  an  officer,  for  the 
purpose  of  indicating  the  capacity  in  which  he  acts,  is  customary, 
and  is  recognized  by  the  courts  as  sufficient.* 

774.  Affidavit  may  be  made  by  agent  or  attorney. 
Whenever,  at  the  commencement  or  during  the  progress  of  any 
civil  suit  or  judicial  proceeding,  it  may  be  necessary  or  proper  for 

» Const,  art  I.  S  5;  R.  S.  a 

2  R  S.  6.  See  Sh.-lt.m  v.  Berry,  19  T.  154.  It  is  not  an  objection  to  an  affidavit 
that  (he  signature  of  the  affiant  is  written  below  that  of  the  officer  to  the  jitrnt. 
The  -t.it  in-'  provi'l- -  -imply  that  the  affidavit  shall  be  signed, and  makes  no  pro- 
vision as  to  the  place  of  the  signature.  Kohn  v.  Washer,  69  T.  67.  The  affidavit 
ought  to  state  distinctly  those  statements  which  the  affiant  knows  to  be  trti. •. 
and  those  which  are  made  on  information  and  belief.  Riley  v.  Treaner,  2o>.  W. 
Rep.  1 

Where  an  affidavit  is  couched  in  such  general  terms  as  to  include  facts  win.  -li 
the  affiant  could  not  know  of  his  own  personal  knowledge,  it  maybe  d 
entirely.    Cook  v.  Garza,  13  T.  i:;i. 

The  affidavit  to  a  i*>tition  for  certiorari  may  be  amended  by  affixing  the  im- 
press of  the  officer's  seal  to  the  jurat.  Hail  v.  Magale,  1  App.  C.  C.,  §  854 

»  R  S.  8270. 

« Flint  v.  McCarty.  1  App.  C.  C.,  §  1018.    In  this  case  a  claim  affidavit  signed 
arty  &  Brown  "  was  held  insufficient 

.Ithfw  v.  Mili.y.  :;  .\\>i>.  C.  C.,  §  120;  McDonald  v.  Morgan,  27  T.  503;  Glenn 
v.  Ashcroft,  2  U.  C.  447. 


AFFIDAVITS,  OATHS   AND    AFFIRMATIONS.  [§  775. 

a 'iv  party  thereto  to  make  an  affidavit,  such  affidavit  may  be  made 
by  either  the  party  or  his  agent  or  attorney.1  This  statute  confers 
upon  the  attorney  the  same  right  to  make  an  affidavit  during  the 
progress  of  a  cause  that  the  law  confers  upon  his  client.  There 
may  be  cases  in  which  the  subject-matter  of  the  affidavit  rests  pe- 
culiarly within  the  conscience  of  the  client,  and  in  such  case  the 
attorney  making  the  affidavit  may  be  required  to  state  his  means  of 
information  or  knowledge  of  the  facts  stated.2 

£  775.  Who  may  administer. 

All  oaths,  affidavits  or  affirmations  necessary  or  required  by 
law  may  be  administered,  and  a  certificate  of  the  fact  given,  by 
any  judge  or  clerk  of  a  court  of  record,  justice  of  the  peace,  or  by 
any  notary  public,  within  this  state.3  It  is  further  provided  by  stat- 
ute that  affidavits  may  be  made  before  either  of  the  following 
officers,  who  are  authorized  to  take  such  affidavits  and  give  a  cer- 
tificate thereof: 

1.  If  taken  within  this  state,  before  the  officers  named  in  the 
first  sentence  of  this  section. 

2.  If  taken  without  this  state,  and  within  the  United  States,  be- 
fore any  clerk  of  a  court  of  record  having  a  seal,  any  notary  public, 
or  any  commissioner  of  deeds  duly  appointed  under  the  laws  of  this 
state,  within  some  other  state  or  territory. 

3.  If  without  the  United  States,  before  any  notary  public,  or 
any   minister,  commissioner  or  charge'  d*  affaires  of  the  United 
States,  resident  in  and  accredited  to  the  country  where  the  affida- 
vit may  be  taken ;  or  any  consul-general,  consul,  vice-consul,  com- 
mercial agent,  vice-commercial  agent,  deputy  consul  or  consular 
agent  of  the  United  States,  resident  in  such  country.4 

Oaths  and  affirmations  may  also  be  administered,  and  affidavits 
taken,  and  certificates  thereof  given  as  in  other  cases,  and  by  such 

1  R  S.  5. 

2  Doll  v.  Mundine,  84  T.  315  (19  S.  W.  Rep.  394).    Robinson  v?  Mattel,  11  T.  149, 
requiring  that  the  application  for  a  continuance  must  show  that  the  attorney 
making  the  affidavit  had  personal  knowledge  of  the  facts  stated,  was  decided 
before  the  adoption  of  the  present  statute. 

The  attorney  may  make  an  affidavit  for  garnishment.  Erwin  v.  City  of  Aus- 
tin, 1  App.  C.  C.,  §  1040.  An  answer  verified  by  the  oath  of  an  attorney  need 
not  show  that  the  material  allegations  were  known  personally  to  the  client, 
provided  they  are  stated  to  be  within  the  personal  knowledge  of  the  attorney. 
Bowles  v.  Glasgow,  36  T.  94. 

»RS.  4. 

4  R  S.  7.  It  is  also  provided  by  statute  that  every  commissioner  of  deeds  shall 
have  full  power  and  authority  to  administer  an  oath  or  affirmation  to  any  per- 
son who  shall  be  willing  and  desirous  to  make  such  oath  or  affirmation  before 
him;  and  that  such  oath  or  affirmation  shall  be  as  good  and  effectual,  to  all  in- 
tents and  purposes,  as  if  taken  by  any  officer  in  this  state  competent  to  take  the 
same.  R  S.  620. 


775.]  AFFIDAVITS,  OATHS    AND    AFFIRMATIONS.  7l'.' 

other  officers  as  are  <>r  may  be  prescribed  by  law.1     Every  notary 
public  has  power  to  administer  oaths  and  give  certiliratrs  thereof 
under  his  hand  and  official  seal.     He  may  "attest  the  oath  of  any 
person  to  a  petition  or  answer  in  any  suit,  and  the  same  wh 
attested  shall  be  valid  in  all  the  courts  of  this  state."2 

1  R  8.  8.  There  are  special  statutory  provisions  respecting  clerks  of  courts: 
"  Tin-  several  clerks  of  the  district  court  shall  have  power  to  administer  all 
oaths  and  affirmations  required  in  the  discharge  of  their  official  duties"  (R  S, 
1086),  and  clerks  of  county  courts  are  authorized  "to  administer  all  oaths  ami 
affirmations,  and  to  take  affidavits  and  depositions  to  be  used  as  provided  by  la  w 
in  any  of  the  courts."  R  8.  1142.  Prior  to  the.  adoption  of  the  present  statat.- 
cK-rks  could  administer  oaths  only  in  the  discharge  of  their  official  dutiea  Car- 
lee  v.  Smith,  8  T.  134;  Smith  v.  Wilson,  15  T.  1  ::•-'. 

A  deputy  clerk  may  take  an  affidavit;  the  statute  authorizes  them  to  do  and 
perform  all  such  official  acts  as  may  be  lawfully  performed  by  the  clerk  in  j>.-t- 
aoa  R  S.  1084.  1139;  Walthew  v.  Milby,  3  App.  C.  C..§  120. 

*  R  S.  3511,  3513.  The  power  to  take  affidavits  is  not  one  of  the  incidents  of 
the  office  of  notary  public  under  the  law*merchant  Jenks  v.  Jenks,  1? 

As  the  statute  prescribes  the  terms  of  an  affidavit  of  inability  to  give  a  bond 
for  costs,  it  is  not  an  objection  that  such  affidavit  is  drawn  by  and  sworn  t<> 
before  the  attorney  of  the  affiant,  the  attorney  being  a  notary  public,  Ryburn 
v.  Moore,  72  T.  85. 


INDEX. 


The  references  are  to  the  sections  when  not  otherwise  indicated. 

ABANDONMENT— 

of  part  of  cause  of  action,  450. 

ABATEMENT  AND  DISCONTINUANCE  — 
in  general.  14.  33. 
death  of  a  joint  defendant,  159. 
death  of  a  partner,  163. 

on  dismissal  as  to  a  defendant  in  partition,  185. 
rule  of  the  common  law.  314. 
il<  ;'.th  of  plaintiff  will  not  abate  suit,  when,  315. 
scire  facias  to  executor,  etc.,  310. 
death  of  defendant,  ::17. 
where  an  executor  or  administrator  dies,  818. 
surviving  parties.  319. 
death  between  verdict  and  judgment,  320. 
marriage  of  female  plaintiff,  321. 
marriage  of  female  defendant,  322. 
suit  to  use  of  another,  32:{. 

death  of  party  to  suit  for  injuries  resulting  in  death,  324. 
injuries  not  resulting  in  death,  325. 
another  action  pending,  326. 
where  some  of  the  defendants  are  not  served,  327. 
discontinuance  in  vacation,  328. 

discontinuance  as  to  a  joint  defendant  served  with  process,  329. 
discontinuance  where  defendant  has  filed  a  counter-claim,  330. 
ilivmi^sal  for  \\arit  of  prosecution,  331. 

:  of  discontinuance,  888. 
setting  aside  judgment  of  dismissal,  333. 
riM|iusUfS  of  scint  facias  and  returns,  334. 
actions  by  and  against  railroad  companies,  335. 
death  of  party  j>ending  appeal,  336. 
actions  a.^ain>t  ivrcivt rs,  ;}:{?. 
ju  i_'iiu-nt  against  a  dead  person,  338. 
party  becoming  insane  before  verdicc,  309. 

ABSENCE  OF  COUNSEL  — 

as  ground  for  continuance,  426. 
as  a  ground  for  a  new  trial,  679. 

ABSENT  DEFENDANTS  — 

Holier  to,  •,".»!. 

ABSENT  TESTIMONY  — 

as  ground  for  continuance,  420. 
as  a  ;a'"iiii'l  for  a  new  trial,  678. 

ACCEPTANCE  OF  SERVICE  — 
of  citation,  73,  294,  295,  299. 
of  sul'i'ii-na.  368. 

ACCOUNT  — 

suit  on,  evidence,  488. 

ADJOURNMENT  — 

when-  a  judge  fails  to  appear  and  open  court,  52. 

ADMINISTRATORS  (see  Executors). 


732  INDEX. 

AFFIDAVIT  OF  FORGERY  — 

of  assignment  or  indorsement,  485. 
of  recorded  instrument,  505,  507. 

AFFIDAVITS  — 

for  notice  by  publication,  302. 

for  order  for  inspection  of  papers,  399. 

how  administered,  480,  773. 

to  plea  of  non  eat  fctctum,  482,  483. 

in  suit  on  account,  488. 

of  loss  of  recorded  instrument,  506. 

of  jurors,  587. 

form;  to  be  in  writing  and  signed,  773. 

may  be  made  by  agent  or  attorney,  774, 

what  officers  may  take,  775. 

AGENTS  — 

suits  by,  145. 

may  make  affidavit  for  a  continuance,  429, 

may  make  affidavit  in  any  case,  774, 

AGREED  CASE  — 

how  made  up  and  tried,  452, 

AGREEMENTS  OF  PARTIES  — 
in  general,  ch.  46,  p.  663, 

ALIAS  CITATION  - 

when  and  how  issued.  289, 

where  some  of  the  defendants  are  not  served,  327, 

AMENDMENTS  — 
in  vacation,  59. 

where  a  demurrer  is  sustained  for  want  of  proper  parties,  195,  196,  201. 
of  citation,  292. 

mistake  in  return  of  citation,  293, 
of  depositions,  387. 
will  authorize  a  continuance.  409, 
of  verdict,  601. 

where  a  new  trial  is  granted,  672, 
of  judgments,  693-696, 

AMICUS  CURI^E  — 
motion  by,  709, 

ANOTHER  ACTION  PENDING  — 
abatement,  326. 

ANSWER  — 

must  be  filed,  when,  13,  290,  435. 

a  waiver  of  process,  296. 

time  of  filing  on  citation  by  publication,  307,  308,  435, 

APPEALS  — 

in  general,  28,  33, 

from  justices'  courts,  120. 

rights  of  intervener,  p.  234,  n.  1, 

reversal,  no  new  citation,  298. 

objections  to  void  process,  300. 

discontinuance  as  to  a  party,  329, 

cause  not  to  abate  by  death,  336. 

from  order  changing  venue,  345. 

from  a  trial  by  the  court,  5.42,  604, 

judgment  on  appeal  from  county  or  justice  court,  how  enforced,  636. 

necessity  of  motion  for  new  trial  before  appeal,  669. 

remittitur,  692. 

perfected  during  the  term,  trial  court  retains  jurisdiction,  p,  660,  n.  4. 

from  justice  courts,  costs,  722. 

revision  of  errors  in  respect  to  costs,  741, 

from  award  of  arbitrators,  753, 


INDEX.  733 

\NVE- 

confers  juris  lir-tion  over  the  person.  74,  223. 
tiint-  and  place  must  be  stated  in  citation,  273. 
citation  to  be  served  ten  days  before  return  day,  290. 
a  waiv. -r  of  immunity  by  reason  of  non-residence,  291,  290. 
vi.lunt:ir> 

l'\  tiling  an  answer  or  other  defensive  pleading,  298. 
I'V  mot luii  to  quash  citation,  297. 
ise  of  reversal  on  appeal,  298. 
on  citation  by  publication,  308. 

AI'I'K  M:  \>VE  DAY  — 

call  of  docket;  default,  13,  434-437,  458. 
on  citation  by  publication,  307,  308. 
demand  for  jury,  458. 

APPRENTICES  — 

venue  of  suit  on  bond,  219. 

ARBITRATION*  AT  COMMON  LAW  — 
agreement,  how  made,  757, 

ii-.i  must  pursue  agreement,  758. 
authority  of  arbitrators,  759. 
award,  how  enforced,  760. 

ARBITRATION  UNDER  THE  STATUTE  — 
of  the  right  to  arbitrate,  746. 

agreement  to  arbitrate,  how  made;  where  filed,  747. 
submission  must  conform  to  the  statute.  748. 
notice  of  day  of  trial:  process  for  witnesses;  organization;  continuance; 

trial;  order  of  argument.  749. 

trial  to  be  governed  by  rules  of  law  and  equity,  750. 
the  award,  751. 

umpire  chosen,  when;  proceedings,  752. 
right  of  appeal.  ?.">* 
validity  and  effect  of  the  award,  754. 
an  award  will  be  set  aside  for  fraud,  mistake,  etc.,  755. 
|>tnalty  for  refusing  to  proceed,  756. 

ARCHIVES,  490,  495,  514 

ARGUMENT  OF  COUNSEL  — 
in  general.  24. 
order  of  argument,  543. 
general  rules,  544, 

argument  on  the  facts  to  be  confined  to  the  evidence,  545. 
side-bar  remarks  prohibited;  objections  to  violation  of  rules  in  argument 

E4& 

objections,  when  and  how  taken,  547. 
right  to  a  reasonable  time  for  argument,  548. 
improper  remarks  are  ground  for  reversal,  when,  549. 
argument  on  the  law,  550. 
reflections  on  opposite  party,  551. 

effect  of  correction  by  court  and  retraction  by  counsel,  55i 
latitude  allowed  where  the  argument  is  confined  to  the  evidence,  553. 
reply  to  improper  argument,  554 
prejudice  against  corporations,  555. 
statement  of  facts  not  in  evidence,  556. 
reading  from  books,  557. 

ARREST  — 

privilege  of  witness.  373. 

ARREST  OF  JUDGMENT  (see  New  Trial)  — 
motion  for,  when  made,  27,  663,  666. 
for  defect  of  parties,  199. 

mds  to  be  specified,  663. 
on  what  grounds,  665. 
motion  determined,  when.  667. 

..Iment  of  pleadings,  672. 
cost  of  suit,  72L 


73±  INDEX. 

ASSAULT  AND  BATTERY  — 
costs  of  suit,  719. 

ASSIGNEES  — 

as  parties  to  suits,  146. 
of  commercial  paper,  147. 
right  to  intervene,  208. 

ASSIGNEES  IN  BANKRUPTCY— 
as  parties  to  suits,  209,  and  note. 

ASSIGNMENT  — 

what  may  be  assigned,  146. 

of  commercial  paper,  who  may  sue,  147. 

how  put  in  issue,  485. 

ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS  — 
suits  to  set  aside,  146. 

ATTACHMENT  — 

justices  may  issue,  2. 

may  issue  in  vacation,  59,  118. 

against  non-residents,  74,  312. 

remedy  of  claimant  of  attached  property,  202,  and  notes;  215. 

right  of  intervention,  215,  216. 

commenced  on  Sundays  or  holidays,  258. 

effect  of  quashing,  297. 

ATTACHMENT  FOR  WITNESSES  — 
refusal  to  attend,  369,  384. 

ATTORNEYS  — 

for  poor  persons,  appointment  of,  56,  57. 

appearance  bv,  191. 

for  absent  defendants,  192,  310. 

may  make  affidavit  for  a  continuance,  429. 

must  prepare  form  of  judgment,  617. 

confession  of  judgment,  645. 

leading  counsel ;  attorney  of  record,  657. 

not  to  act  as  surety,  658. 

notice  of  proceedings  against,  711. 

fees,  as  costs,  713,  note. 

may  make  affidavit  for  his  client,  774 

AUDITORS  — 

auditor  appointed,  when,  701. 

notice  of  the  hearing,  702. 

manner  of  conducting  the  trial,  703. 

forms  of  proceeding  and  rules  of  evidence,  704 

report  of  auditor,  705. 

report  in  evidence;  exceptions,  706. 

B. 

BILL  FOR  A  NEW  TRIAL  — 
when  necessary,  667. 

new  trial  may  be  granted  after  the  term,  686. 
nature  of  the  proceeding,  687. 
procedure,  688. 
judgment  on  service  by  publication,  689. 

BILL  OF  EXCEPTIONS  — 
in  general,  29. 

to  rulings  on  motion  for  a  continuance,  433. 
to  rulings  on  pleadings,  447. 
where  a  case  is  submitted  to  the  judge,  453. 
exceptions  to  rulings,  when  taken,  533. 
requisites  of  bilL,  534 
no  exceptions  or  bill  required,  when,  535. 
exceptions  required  in  certain  cases,  536.     •- 
exceptions  to  admission  or  exclusion  of  evidence,  537. 


INDEX.  735 

BILL  OF  EXCEPTIONS  (continued)  — 

to  I-  .la-lire  within  a  certain  time,  538. 

t«>  be  submitted  to  adverse  party,  and  filed  during  the  term,  539. 

proce-lure  when  bill  found  incorrect,  540. 

controv.-rt.--l  bill  of  exceptions  and  affidavits  relating  thereto,  541. 

when-  tin*  trial  is  by  the  court.  ~jl'2. 

BILLS  AND  NOTES  — 

assignment,  who  may  sue,  147. 

parties  to  suits  on,  1-T,?.  \~A 

ri^ht  of  owner  to  intervene. 

assignment,  how  put  in  issue,  4S5. 
BONDS  — 

parties  to  suits  on,  164-166. 

BKIKFS  — 

how  prepared;  filing,  29. 

c. 

CALL  OF  DOCKET  — 

appearance  day :  default,  434. 
cases  to  be  tried  when  called,  442. 
non-jury  docket.  444. 
demand  for  jury. 

ELLATION  — 

jurisdiction  in  equity,  117. 

CASES  CERTIFIED  — 

from  court  of  civil  appeals  to  supreme  court,  29,  88-90. 

CERTIORARI  — 

district  courts  and  judges  may  issue,  56, 118. 
may  issue  in  vacation,  59. 
jurisdiction  of  supreme  court,  91. 
jurisdiction  of  the  district  court,  119. 
judgments,  how  enforced,  636. 
rs  of  suit,  7ii 

CHALLENGE  OF  JURORS  (see  Jurors)  — 
to  the  array.  46a 
for  cause,  465. 
peremptory,  466,  467. 

•unos  of,  468. 
to  be  decided  promptly,  469. 

CHANGE  OF  NAME  — 
venue  of  suit,  219. 

CHANGE  OF  VENUE  (see  Venue)  — 
in  general,  15. 
by  consent,  340. 

on  the  application  of  either  party,  341. 
judge  may  inquire  into  truth  of  application,  342. 
to  what  county.  343. 
duty  of  clerk.  344 
time  of  making  application,  345. 
matters  of  practice,  346. 

CHARGE  OF  COURT  — 
in  general,  24,  8& 

jury  may  ask  further  instructions,  26,  588. 
t  lie  subject  a  difficult  one,  558. 
when  given,  559. 

i  not  be  excepted  to,  560. 

jury  may  take  charge  with  them,  and  may  ask  additional  instructions,  561. 
requisites  of,  562. 
on  the  weight  of  evidence.  553. 
on  the  credibility  of  witnesses,  " 
:  assume  controverted  f.i 
questlc>n<>  of  law;  construction  of  written  instruments,  560. 


736  INDEX. 

CHARGE  OF  COURT  (continued)  — 

on  the  preponderance  of  evidence,  567. 

must  apply  to  facts  in  evidence,  568. 

must  be  confined  to  the  issues,  569. 

must  cover  all  the  issues,  570. 

defining  the  issues,  571. 

must  not  give  undue  prominence  to  facts  and  issues,  572. 

when  pleadings  contain  several  combinations  of  facts,  573. 

on  negligence,  574 

contributory  negligence,  575. 

as  to  damages,  576. 

measure  and  elements  of  damages,  577. 

parties  may  ask  instructions;  if  refused,  no  exceptions  required,  578. 

special  instructions  must  be  requested,  when,  579. 

need  not  be  repeated,  580. 

misleading;  harmless  error,  581. 

how  construed  in  determining  its  sufficiency  or  validity,  583. 

directing  a  verdict,  583. 

error  in,  as  a  ground  for  a  new  trial,  680. 

CHATTEL  MORTGAGES  — 
copies  in  evidence,  502. 

CITATION  (see  Return;  Service  of  Citation)  — 
in  general.  12;  ch.  12,  p.  289. 
must  be  under  seal,  62. 
waiver  of,  and  voluntary  appearance,  73. 
agreement  as  to  venue,  226. 
to  issue  on  filing  petition,  253,  263. 
discontinuance  as  to  defendants  not  served,  327. 
must  issue  forthwith,  263. 
one  to  each  county,  264. 
contents  of  citation,  265. 
the  officer  to  whom  issued,  266. 
must  be  directed  to  the  proper  county,  267. 
must  state  nature  of  demand,  268. 
must  state  the  names  of  all  the  parties,  269. 
certainty  as  to  the  names  of  parties,  270. 
date  of  filing  and  file  number,  271. 
must  be  under  seal,  dated  and  tested,  272. 
must  state  time  and  place  of  appearance,  273. 
style  of  process,  274 
when  returnable,  275. 

defendant  out  of  county;  copy  of  petition  to  accompany  citation,  276. 
sheriff  or  clerk  a  party  to  the  suit,  277. 
service  by  deputy  sheriff,  278. 

duty  of  officer  as  to  indorsement,  execution  and  return,  279. 
service  within  the  county,  280. 
service  in  suits  against  counties,  281. 
service  on  cities,  towns,  etc.,  282. 
service  on  incorporated  companies  and  receivers,  283. 
life  and  health  insurance  companies,  284 
service  on  foreign  corporations,  285. 
service  upon  a  firm,  286. 
return  of  citation,  287. 
return  not  served,  288. 
alias  process,  289. 
time  of  service  of  citation,  290. 
notice  to  absent  or  non-resident  defendants,  291. 
amendment  of  citation,  292. 
mistake  in  return,  293. 
acceptance  of  service,  294 
entering  appearance  in  open  court,  295. 
answer  is  appearance,  296. 
quashing  citation  on  motion,  297. 
no  new  citation  in  case  of  reversal  on  appeal,  298. 
no  judgment  without  service,  299. 
objections  to  citation,  service  and  return,  300. 
false  return,  301. 


INI 

CITATION*  HY  PUBLICATION  — 
in  gt-n.-ral.  r>:  ch.  13.  ].. 

A  trial  in  rase  of  di-fault,  '-27.  B89. 
jurisdiction,  collar   i  il  attack,  70. 
valiility  of  judgments.  74. 
attorney  tor  ai>s.-nt  defendant,  192. 

nt  of  the  evidence  required,  192. 
elf.  ct  ..t  app. -a ranee  and  motion  to  quash,  296,  297. 
when  author 

contents  of  citation;  publication,  303. 
unknown  heir-.  ::oj. 
publication  in  otlier  cases,  '•' 

ni^  of  Texas,  306. 
time  <>f  pulilieatio' 

answer  filed,  when:  appearance,  308. 
return  of  citation,  309. 
judgment  in  suits  l.y  publication,  310. 
statement  of  the  evidence.  :U1. 
wliat  judgment  authorixt-d.  :512. 
presumptions  in  aid  of  the  proceedings,  313. 

I'lTIES  AND  TOWNS  — 
suits  by  and  against. 
service"  of  citation  on.  . 
not  required  to  give  bond  or  security  as  a  party  to  a  suit,  662. 

CLERKS  OF  COURT  — 

duties  in  filing  petition,  11,  263. 

must  issue  subpoenas  for  witnesses,  17. 

duties  in  summoning  jurors,  129.  135. 

to  be  sworn,  132. 

duties  in  instituting  suits,  253-257,  259,  263. 
must  keep  dockets,  255.  256,  460. 
indexing  names  of  parties,  2~,7. 
party  to  suit,  clerk  pro  tern,  to  be  appointed,  277. 
duties  in  citation  by  publication,  302. 
duties  on  change  of  venue,  344 
may  require  security  for  costs,  347. 
must  issue  subpoenas,  368. 
duties  in  taking  depositions,  380,  382. 
may  take  depositions,  383. 
duties  in  entering  judgment,  617. 

COLLATERAL  ATTACK  ON  JUDGMENTS  — 
in  general,  70,  640. 

presumptions  as  to  service  of  process,  299. 
in  case  of  citation  by  publication,  302. 
presumptions,  313. 

COLOR  — 

does  not  disqualify  as  a  witness,  477. 

(  OMMISSIONER  OF  INSURANCE  — 

copies  of  official  records  in  evidence,  516. 

OJMMON  CARRIERS  — 

I  nirties  to  suits  against,  171. 
venue  of  actions  against,  219,  245. 

MON  LAW  — 

in  force  on  rules  of  evidence,  21. 
abatement  of  actions,  1514. 

COMMUNITY  PROPERTY  — 

parties  to  suits  concerning,  154,  15& 
suits  by  survivor,  156,  157. 

COM PTROLLER'S  TRANSCRIPTS  — 

in  evidence  in  suits  against  officers,  4991 

COMPUTATION  OF  TIME  — 
rules  for,  766-7  7  i 
47 


738  INDEX. 

CONCLUSIONS  OF  FACT  AND  LAW  — 
in  courts  of  civil  appeals,  29. 
where  the  trial  is  by  the  court,  451,  542,  604. 
defective  or  erroneous,  605. 

CONFESSION  OF  JUDGMENT  — 
in  general;  cures  errors,  18.  647. 
procedure;  petition  and  affidavit,  643. 
of  the  instrument  authorizing  judgment,  644. 
confession  by  attorney.  645. 

amount  of  debt  or  damage  should  be  agreed  on,  646. 
impeachment,  647. 

CONSENT  JUDGMENT  — 
in  general,  626. 

CONSIGNOR  — 

may  sue  carrier,  171. 
may  intervene,  210. 

CONSOLIDATION  OF  SUITS  — 
discretion  of  court,  356. 
when  consolidation  of  suits  is  proper.  357. 
costs  of  several  suits  which  should  have  been  joined,  358. 

CONSTABLE  — 

service  of  citation,  266,  267,  279. 

where  the  sheriff  is  a  party,  277. 
citation  by  publication,  302. 
service  of  subpoena  in  taking  depositions,  374. 

CONSTITUTIONAL  LAW  — 

action  against  non-resident  or  unknown  owners  to  quiet  title,  184,  312. 

change  of  law  as  to  venue,  220. 

judgment  without  notice,  299. 

state  may  determine  status  of  its  citizens  as  against  non-residents,  305,  312. 

judgments  against  non-residents,  312. 

rules  of  evidence,  481. 

provision  affecting  land  titles,  p.  481,  n.  3. 

CONSTRUCTION  OF  WRITINGS  — 
a  question  for  the  court,  566. 

CONTEMPT  — 

power  of  county  court,  3. 

power  of  district  court,  4. 

power  of  courts  of  civil  appeals,  5,  102. 

power  of  supreme  court,  102. 

in  general;  proceedings  in  contempt  cases,  60,  61. 

refusal  of  witness  to  attend,  369,  384. 

refusal  of  witness  to  testify,  372,  384. 

CONTESTED  ELECTIONS  — 
jurisdiction,  103;  p.  131,  n.  7. 
venue,  250. 

CONTINUANCE  — 

general  principles  stated,  16. 

payment  of  witness  fees  to  show  diligence,  17. 

discretion  in  granting,  58,  413. 

to  bring  in  obligors  on  indemnity  bonds,  166. 

for  want  of  proper  parties,  200. 

where  some  of  the  defendants  are  not  served,  327. 

application,  when  made;  when  granted,  403. 

first  application,  requisites  of,  404. 

second  and  subsequent  applications,  405. 

whether  an  application  is  first  or  second,  etc.,  406. 

court  not  held  or  business  not  disposed  of,  407. 

miscellaneous  provisions;  surprise  by  rulings,  408. 

surprise  caused  by  supplement  or  amendment  to  pleading,  409. 

time  of  making  application,  410. 

on  .the  character  ot  the  pleadings,  411. 


INDEX. 

CONTINUANCE  (continued)  — 

postponein.-nt  to  future  day  of  term,  412. 

statutory  applications,  413. 

diligence,  how  Mated.  414. 

probability  of  procuring  the  evidence,  415. 

a  party  must  not  delay  the  preparation  of  his  case,  416. 

excusing  want  of  diligence.  417. 

materiality  of  absent  testimony,  418.  • 

efforts  to  discover  materiality  of  testimony.  419. 

•  •merit  of  testimony  of  absent  witness,  420. 
process  for  witnesses,  421. 

wlu-tlier  witness  fees  should  be  paid  or  tendered,  422. 

diligence  in  taking  dej>ositions,  423. 

testimony  not  obtainable  from  any  other  source,  424. 

name  and  residence  of  witness,  4,'"). 

absence  of  counsel,  4^'». 

matters  of  practice,  427. 

r.  <|uisites  of  application,  428. 

attorney  or  agent  may  make  affidavit,  429. 

counter-affidavits.  430. 

motion  defeated  by  admission  of  facts,  431. 

granted  on  terms.  432. 

exceptions  to  rulings,  433. 

( 'ONTRACTS  — 

joint  and  several,  parties  to  suits  on,  151,  152,  153. 
joint,  suit  against  survivor,  159. 

failure  of  proof,  199. 

to  l>e  performed  in  a  certain  county,  venue,  225,  226. 
limiting  time  to  sue,  261. 

or  as  to  giving  notice  of  claim  for  damages,  262. 
with  counties,  suits  on,  661. 

CONTRIBUTORY  NEGLIGENCE  — 
defined;  charge  of  court,  575. 

COPIES  (see  Evidence). 

COPY  OF  PETITION  — 

to  accompany  citation,  276. 

CORPORATIONS  (see  Railroad  Companies)  — 
suits  by,  149. 

venue  of  suits  against,  245. 
service  of  citation,  283. 
charters  and  records  in  evidence,  489. 

S  (see  Fees)  — 
in  general,  ch.  49,  p.  676. 

against  non-residents  cited  by  publication.  74,  312,  713,  note, 
on  dismissal  of  intervention,  J"7. 
on  discontinuance,  328. 
on  setting  aside  judgment  of  dismissal,  333. 
where  suits  should  have  been  consolidated,  358. 
taxing  witness  fees,  371. 

in  case  of  supplement  or  amendment  to  pleading,  409. 
of  exceptions  not  disposed  of  on  call  of  case,  1 17. 
of  abandoned  pleading,  450. 
com  posed  of  fees  due  officers,  713. 
each  party  responsible  for  his  own  costs,  714 
payment  of  fees  in  advance,  or  to  end  of  term,  715. 
costs  not  paid  on  demand,  how  collected.  716. 
nu'ht  of  successful  party,  discretion  of  the  court.  717. 
costs  where  demand  is  reduced  by  payment,  or  a  counter  claim  is  tiled.  718. 

-  in  actions  for  asxault  and  battery,  slander,  etc.,  7l'J. 

•.tie...  7-J". 

in  case  of  new  trial  or  arrest  of  ju  l-:n--nt.  7'J1. 
in  case  of  appeal  or  crrtinrnr 

executors,  admit  nd  ^uardi 

>t    debt    IS 


740  INDEX. 

COSTS  (continued)  — 

action  prematurely  brought,  723. 
in  trespass  to  try  title,  726. 
what  may  be  taxed  as  costs,  727. 
compensation  of  guardians  arf  litem,  728. 
witness  fees,  729. 

costs  on  motions,  exceptions  and  other  pleadings,  730. 

fee  books;  fee  bills;  penalty  for  taking  illegal  fees;  posting  list  of  fees,  731. 
fees  of  clerks  of  district  courts,  732. 
fees  of  county  judge,  733. 
fees  of  clerks  of  county  courts,  734. 
fees  of  sheriffs  and  constables,  735. 
costs,  736. 


COSTS  IN  APPELLATE  COURTS  — 
in  general,  737. 
in  courts  of  civil  appeals,  738. 
appellant  liable  for,  when,  739. 
appellee  liable,  when,  740. 
revision  of  errors,  741. 
execution  for  costs;  duty  of  officer.  742. 
fees  of  clerk  of  supreme  court,  743. 
fees  of  clerks  of  courts  of  civil  appeals,  744. 
report  by  clerks  of  courts  of  civil  appeals,  745. 

COUNTER-AFFIDAVITS  — 

on  application  for  a  continuance.  430. 
on  motion  for  new  trial,  674. 

COUNTER-CLAIM  — 

when  plaintiff  may  discontinue,  330,  614. 
in  suits  on  accounts,  488. 
costs  in  case  of,  718. 

COUNTIES  - 

suits  by  and  against,  148. 

new,  venue  of  suits,  217. 

venue  of  suits  against,  241. 

claims  must  be  presented  before  suit,  260. 

service  of  citation  on,  281. 

new,  transcribed  records,  508. 

suits  on  contracts  with  or  for  a  county,  661. 

costs  in  suits  against,  720. 

COUNTY  COURTS  — 

in  general,  ch.  5,  p.  114. 

jurisdiction  and  powers:  a  court  of  record,  3,  36. 

collateral  attack  on  judgments,  36. 

appellate  jurisdiction,  120. 

COUNTY  SURVEYORS  — 

copies  of  records  in  evidence,  513. 

COURT-HOUSES  — 

as  to  place  of  holding  district  courts,  37. 

COURTS  — 

jurisdiction,  generally,  65  et  seq. 

organization  and  jurisdiction,  1. 

power  of  the  legislature,  1,  3,  34,  67. 

adjournment  of  term  where  judge  fails  to  appear,  52,  407. 

proceedings  in  vacation,  59. 

COURTS  OF  CIVIL  APPEALS  — 
in  general,  o. 

organization  and  powers,  5,  97. 
trial  of  causes  in,  29. 
jurisdiction,  93-95. 
quorum.  97. 

power  to  issue  writs,  98. 
sessions,  100. 


741 


nimuTY  nr  WITNESSES  — 

a  i|ue*tion  for  the  jury,  564. 


for  damages,  venue  of,  '-' 

\-\MINATluN  — 
of  witnesses,  521. 

D. 

s  — 

cont  notice  of  claim 

charge  of  court,  57(5,  57  7. 

form  of  verdict.  Ol'i. 

excessive  or  inadequate,  when  ground  for  new  trial,  683. 

release  of  excess  on  appeal,  693. 

DATE— 

of  citation,  271.  272.  803,  804. 

of  receipt  «>f  citation  by  officer,  270. 

of  notice  to  absent  or  non-resident  defendants,  291, 

of  sulipu-na.  368. 

DEATH  (see  Abatement)  — 
of  a  joint  defendant,  : 
of  a  partner  pending  suit,  163. 
abatement  aii'l  iwivor.  ch.  14,  p.  330. 
between  verdict  and  judgment,  • 
of  one  suing  for  use  of  another,  323. 
pending  appeal,  336. 
judgment  against  a  dead  person,  338. 

DEEDS  OF  TKTST  — 

judicial  construction,  p.  118,  n.  3. 

DEFAULT  — 

in  actions  against  non-resident  or  unknown  owners  to  quiet  title,  184. 

defective  process,  800. 

'  itation  by  publication,  310. 

a  pi  lay;  call  of  docket,  434. 

time  of  tiling  answer.  435. 

judgment  by  default,  when  tala-n,  436. 

when  some  of  the  defendants  answer,  437. 

form  of  judgment  by  default,  438. 

•  of  different  forms  of  judgment  by  default,  439. 
what  admitted  by  a  default.  4  >u. 

judgment  I  iy  d.'tault  >et  a»ide,  when,  441. 

jury  trial.  4.V.. 

as  to  a  jiarty  not  served,  p.  592,  n.  8. 

!    OF  PARTIES  — 

ohj.-ctioii<,  liow  and  when  taken,  p.  . 

for  want  ot'  pro]..-r  defendant,  199. 
how   »tiviat'-d.  'JiJl. 

f.F.R  VTI'iNs  OF  THE  JURY  — 
in  g'-iu-ral.  26.  83. 

tak--  i-harg'-  with  them.  .".til. 
may  a.-k  furth'-r  instructions,  561,  589. 
fciremaii  of  jury.  >  J. 
may  tak.-  pa|«-rs  with  tli.-m.  585. 
jury  to  h»-   k.-pt  together:  duty  of  officer  in  charge;  caution  in  case  th<  y 

are  jn-rmitt'-d  t«i  -..-parat.-. 

misconduct  <>f  juror*;  atlldavits  not  )•••••.  i\.  -d  \i>  impta'-ii  verdict. 
may  communicate  with  the  com: 
may  have  witiu-^  re-4'xamined, 
may  examii.  ".'.•!. 

•  may  pnx-eed  with  other  business,  596. 

DEMURRER— 

lor  d.-fei-t  of  parties  197. 
when  disposed  of,  44(i 


74:2  INDEX. 

DEMURRER  TO  EVIDENCE  — 
when  and  how  taken,  531. 
admits  what,  532. 

DENTISTRY  — 

examining  board,  records  of,  in  evidence,  515. 

DEPOSIT  IN  COURT  — 
in  general,  659. 

DEPOSITIONS  OF  PARTIES  — 

a  part}7  may  take  his  own  deposition,  392. 

a  party  may  take  the  deposition  of  adverse  party,  393. 

notice;  interrogatories;  execution  of  the  commission,  394 

answer  may  embrace  what;  contradiction,  395. 

interrogatories  taken  as  confessed,  398. 

objections  to  interrogatories  and  answers,  397. 

DEPOSITIONS  OF  WITNESSES  — 

how  taken  and  returned,  generally;  objections  to;  use  of  at  the  trial,  17,  33. 
notice  by  publication.  305,  379. 
diligence  in  taking,  370,  423. 
may  be  taken,  when,  377. 
notice,  and  service  thereof,  378. 
perpetuating  testimony,  380. 
cross-interrogatories;  either  party  may  use,  381. 
commission  to  take,  382. 
officers  authorized  to  take,  383. 

subpoena  for  witness;  refusal  to  appear  or  answer,  384. 
execution  of  the  commission,  385. 
officer's  certificate.  386. 

corrections  and  amendments;  loss  of  depositions,  387. 
return  of  the  depositions,  388. 
opening  depositions,  389. 
objections  to  depositions,  390. 
..may  be  read  subject  to  exceptions,  391. 
notice  of  objections,  712. 
may  be  used  when  the  witness  is  present,  377. 
jury  may  examine,  591. 
must  not  be  .taken  by  jury  on  retiring,  585. 

DEPUTY  CLERKS  — 

'  may  take  depositions,  p.  373,  n.  2. 

DEPUTY  SHERIFF  — 

appointment  of,  and  service  of  process,  278,  279. 

DESCRIPTION  OF  LAND  — 
in  judgments,  630. 

DETINUE  — 

the  judgment,  633. 
DEVISEES  — 

as  parties  to  suits,  158. 

DILATORY  PLEAS  — 

to  be  determined  before  trial,  18,  443-447. 
DILIGENCE  — 

in  procuring  attendance  of  witnesses,  370,  421,  422. 

in  taking  depositions,  370,  377,  423. 

to  authorize  a  continuance,  413,  414,  416,  417,  419. 

DIRECTING  A  VERDICT  — 
when  proper,  588. 

DISCONTINUANCE  (see  Abatement)  — 
in  general,  14,  SJ27  et  seq. 
as  to  a  principal  obligor,  152,  164. 
where  a  counter-claim  is  filed,  614. 

DISCRETION  — 
in  general,  58. 

liability  of  judges  for  judicial  acts,  58. 
in  consolidating  suits,  356. 
in  granting  or  refusing  a  continuance,  413. 


1M>KX. 

DISMISSAL  — 

in  case  of  intervention.  20  j. 

of  intervention.  - 

for  want  <>f  prosecution,  331. 

setting  aside  judgment  of.  333, 

for  failure  to  give  security  for  costs,  333. 

DISQUALIFICATION  OF  JUDGES  — 
in  general.  7.  '.I*— in. 

Appointment  <>f  -i-xaal  district  judges,  41. 
election  by  the  bar,  41. 

procedure  where  a  county  judge  is  disqualified,  44. 
by  int.  n  ^t.  }"•. 
by  relationship,  4ft. 
having  ;u-t.-d  iis  counsel 
how  question  determined,  48. 
acts  of  disqualified  judge,  49. 
qualifications  of  special  judges,  50. 
power  of  special  judge,  51. 
no  change  of  venue,  341. 

DISTRICT  COURTS  — 

jurisdiction,  original  and  appellate,  4;  ch.  5,  p.  114. 

to  be  held  at  count v  seat.  37. 

powers  of  court  an J  judge,  56. 

appellate  and  supervisory  jurisdiction,  119. 

DIVORCE  — 

jurisdiction.  103. 

venue  of  suit- 

notice  by  publication,  305. 

DOCKETS  (see  Call  of  Docket)  — 
tile  docket,  how  kept,  255. 
court  and  bar  dockets,  256. 
cases  to  be  docketed  and  numbered  in  order,  442. 
jury  docket.  443,  460. 
motion  docket,  710. 

DOMICILE  — 

ilt -fined;  means  residence,  in  statute  on  venue,  217,  218. 

DRAWING  AND  IMPANELING  A  JURY,  ch.  27,  p.  436, 

DUE  PROCESS  OF  LAW  — 

judgment  without  notice,  299. 
judicial  discretion,  58. 

E. 

EMINENT  DOMAIN  — 

'  ap|N)intment  of  commissioners,  104. 
parties  to  proceedings,  196. 

EQUITY  — 

jurisdiction  of  the  county  court,  3,  66,  104 
juri>'liction  of  the  district  court,  4,  66,  103. 
jurisdiction  generally.  117. 

KATS  — 

jurisdiction,  103,  104 
vi-mir.  219. 
citation  by  publication.  30& 

ESTATES  OF  DEC  K I » K N TS  — 

parties  t<«  ->uit-.  i-»nr,-rnin>j.  156-161. 

>iiit  on  instrument  executed  by  deceased,  483. 

KVIDKNCE  (see  Deposition*:  Introduction  of  Evidence;  Witnessed)  — 
statutory  rul».-«i  <-t.  <  ii.  :{M.  p. 
general  ruli-M  c»iuiiion  law  in  force,  21,  48L 
i-<i:ii|»-t«-ncy  of  witncssfi.  -Jl. 
introduction  <  : 


7*4  INDEX. 

EVIDENCE  (continued)  — 
subpoena  duces  tecum,  376. 
notice  to  produce  papers,  398,  403. 
where  the  trial  is  by  the  court,  451. 
in  suits  against  executors,  etc.,  479. 
cumulative,  discretion  of  court,  529. 
instrument  on  which  suit  or  defense  is  founded,  482. 
instrument  executed  by  testator  or  intestate,  483. 
copy  of  instrument  on  file  in  another  court,  484. 
assignment,  how  put  in  issue;  485. 
printed  statute  books.  486. 

rate  of  interest  in  other  states  or  countries,  487. 
suit  on  sworn  account,  488. 
charters  and  records  of  corporations,  489. 
copies  of  public  records  in  this  state  admissible,  490. 
copies  of  judicial  records,  491. 
probate  records,  492. 

copies  of  wills,  or  of  the  probate  or  record  thereof.  493. 
copies  and  certificates  from  certain  state  offices.  494 
certain  transfers  or  deeds  not  to  be  withdrawn  from  land  office,  495. 
notarial  acts  and  certificates,  496. 
judicial  records  of  other  states,  497. 
public  records  of  other  states,  etc.,  how  proved,  498. 
comptroller's  transcript  in  suits  against  officers,  499. 
certified  copies  from  heads  of  departments,  500. 
assessment  and  payment  of  taxes,  how  proved,  501. 
certified  copies  of  chattel  mortgages,  502. 
proof  of  appointment  of  executors,  etc.,  503. 
partition  proceedings  and  decrees  for  recovery  of  title,  504. 
recorded  instruments  admissible,  505. 
copy  of  recorded  instrument  admissible,  506. 
affidavit  of  forgery  of  recorded  instrument,  507. 
transcribed  records  of  new  counties,  508. 
translated  copies  of  land  office  records,  509. 
copies  of  instruments  filed  prior  to  1837,  510. 
certain  titles  not  evidence,  unless,  etc.,  511. 
records  of  certain  titles  confirmed;  shall  be  evidence,  when,  512. 
copies  of  records  of  county  surveyors,  513. 
archives  of  former  governments,  514. 
miscellaneous  statutory  provisions,  515. 
admitted  for  a  special  purpose,  527. 
improperly  admitted,  may  be  withdrawn,  528. 
examination  of  injured  party,  660. 

illegally  admitted  or  excluded,  when  ground  for  a  new  trial,  681. 
agreement  of  parties  as  to,  699. 
in  trials  before  an  auditor,  704,  706. 

EXAMINATION  OF  INJURED  PARTY  — 
in  general,  660. 

EXAMINATION  OF  WITNESSES  — 
in  general,  22,  519. 
parties  to  suit.  374. 
where  the  trial  is  by  the  court,  451. 
may  be  put  under  the  rule,  22,  530. 
leading  questions,  520. 
cross-examination,  521. 

EXCEPTIONS  (see  Bill  of  Exceptions}  — 

to  rulings  on  motion  for  a  continuance,  433. 

where  the  trial  is  by  the  court,  451,  604 

to  admission  or  exclusion  of  evidence,  518,  537. 

when  taken,  533. 

none  required,  when,  535. 

required  in  certain  cases,  536. 

to  improper  argument,  546,  547. 

to  charge,  not  required,  560. 

refusal  of  instructions,  578. 

to  the  conclusions  of  law  or  judgment  of  the  court,  604 

to  report  of  auditor,  706. 


INDEX. 


EXCEPTIONS  TO  PLEADINGS  — 
when  ilisposed  of,  44<>,  447. 

OTION  — 

J,  :{•,!. 
ut  must  enforce  its  decrees,  i'- 

imt  is~u>'  a-ain>t  executors,  etc.,  637. 
for  costs.  Tin. 

EXECUTORS    \NI)  ADMINISTRATORS  — 

suit-*  by.  1.")?. 

I -a:  _:ainst  estates,  158,  178. 

venue  of  suits  against. 
Irath  ..(  a  party  to  a  suit,  310.  317,  318. 
ti'.t  required  i  urity  for  costs,  851. 

-nits  against.  479. 
pMrif  of  appointment,  ~>l):*. 

•loMiiv  iif  nmrt^a^e  against,  034. 
jU'l.irnifiiiv  au'ainst 
costs  of  suit.  ' 

EXTRA  TERRITORIAL  JURISDICTION  — 
in  p-in-ral.  7.">. 
as  to  land  titles,  63?. 

F. 

-E  RETURN  — 
lial»ility  of  officer.  :{m. 
\i<>\\-  contradicted,  bill. 

FEES  OF  OFFICERS  — 
costs  of  suit,  7i:<. 

payment  in  advance,  or  to  end  of  term,  713. 
of  clerks,  7^?. 

fee  books;  fee  bills:  penalty  for  taking  illegal  fees,  731. 
clerks  of  district  courts,  732. 
cMiuity  ju<lKr'-. 

clerks  of  county  courts,  734. 
shi-ritFs  and  coiistablfH.  1 '•'•'>. 
clerk  of  supn-nu'  court,  74:1 
clerks  of  courts  of  civil  appeals,  744. 

KILE  DOCKET  — 
how  kept,  'J')."). 

FILE  NUMBER  — 

citation  must  state,  271. 

KILINd   PAPERS  — 

i"d  filed,  when 

date  of  filing  petition  to  be  stated  in  citation,  271. 
I'!-"  1  insti uiui-nt  relied  on  as  evidence,  OUo. 

FINAL  jriMJMENT  — 

only  oiH-  can  \n-  i-ntiTt-d,  437,  631. 

deflned,  • 

FORECLOSURE  — 

form  of  jiid^nu-nt. 

FOREIGN  CORPOK ATIoNS  — 

Vdiui-  of  -mt-,  aLTam-'t.  -17. 

servicr  of  citation  on,  . 

waiver  of  service  of  citation,  290. 

FuKEHiN  Jt:  I  Hi  ME  NTS  — 
collatt-ral  attack.  70. 

FORFEITURE  ol    rilARTERS  — 

jurisdiction,  ]i»L 

V.Mlll- 

i)F    ViTION  — 
no  distinctions  ub^-rvyd  in  practice,  3. 


7  ±6  INDEX. 

FRAUD  — 

on  the  jurisdiction,  78. 

as  to  venue,  p.  246,  n.  1 ;  p.  234,  n.  1. 
venue  of  suits  in  case  of,  2*8. 

FRAUDULENT  CONVEYANCES— 
parties  to  suits  to  set  aside,  174. 


G. 

GARNISHMENT  — 

justices  may  issue.  2. 
may  issue  in  vacation,  59. 
how  docketed,  254. 
citation  by  publication,  312. 

GENERAL  DENIAL  — 

objections  under  for  defect  of  parties,  198,  199. 

GOVERNOR  — 

not  subject  to  mandamus,  92. 

GUARANTOR  — 

as  a  party  to  a  suit,  140,  153. 

GUARDIAN  — 

venue  of  suits  against,  227. 
evidence  in  suits  by  or  against,  479. 
proof  of  appointment,  503. 
judgment  against,  how  enforced,  637. 
costs  of  suit,  723. 

GUARDIANS  AD  LITEM- 
for  whom  appointed,  193. 

appointment  where  minor  not  properly  served,  p.  298,  n.  3. 
not  required  to  give  security  for  costs,  351. 
compensation ;  costs  of  suit,  728. 


H. 

HABEAS  CORPUS  — 

district  courts  and  judges  ma}'  issue,  56,  118. 
jurisdiction  of  supreme  court,  91. 

HEADS  OF  DEPARTMENTS  — 
mandamus  against,  92. 

venue,  242. 

to  furnish  certified  copies  of  papers,  494,  500. 
and  official  certificates,  494. 

HEIRS  — 

joinder  as  parties  to  suit  by  husband  or  wife,  154-156. 
parties  to  suits  by  and  against  the  estate,  157,  158. 
suits  by  and  against,  160. 
parties  to  suits  affecting  land,  177,  180,  195. 

to  enforce  a  mechanic's  lien,  181. 

in  partition  suits,  1H5. 

when  action  may  be  revived  against,  317,  323. 
may  be  made  parties  on  appeal,  336. 
evidence  in  suits  by  or  against,  479. 

HOLIDAYS  (see  Sunday)  — 

no  legal  proceedings  on,  except.  11,  12,  258. 

HUSBAND  AND  WIFE  — 

suits  by  and  against,  154.  155. 

suits  by  survivor,  156,  197. 

service  of  citation  in  suits  against,  287. 

may  testify,  478. 


INDEX.  747 

I. 


IDEM  SONANS  — 
in  general. 

IDIOT  — 

guardian  ad  lit»n  for,  193. 

IMI'KACUMKNT  OF  WITNESSES,  522-526. 

INCUJCBRANCERS— 

as  (mrties  to  suits,  178,  180. 

INWvMNIKYIXG  BpNDS  — 

JOTS  ma\  !>••  joined  in  suits  on,  166.  195. 
an.l  a  continuance  may  be  had,  403. 

INDEXING  - 

n:inu's  nf  parties  to  suits,  257. 

INDORSEMENT  — 

of  tiling  of  petition,  254 
on  citation,  279. 
how  put  in  issue,  485. 

INHERITANCES— 

venue  of  suits  concerning,  232. 

INJUNCTIONS  — 

courts  and  judges  may  issue,  56,  57,  118. 

may  issue  in  vacation,  59. 

dMobedienoe  of,  may  be  punished  in  vacation,  59. 

venue  of  suits  to  enjoin  judgments,  238. 

notice  of  motion  to  dissolve,  711. 

commenced  on  Sundays  and  holidays,  258. 

INJURIES  NOT  RESULTING  IN  DEATH  — 
action  ilin-s  not  abate  by  death  of  a  party,  325. 

INJURIES  RESULTING  IN  DEATH  — 
parties  to  suits,  190. 
ill-nth  of  party  to  a  suit,  3:2 4. 

INSANITY  - 

party  becoming  insane  before  verdict,  339. 

INSTITUTION  OF  SUITS  — 

how  and  when  instituted,  11;  ch.  11,  p.  283. 

INSTRUCTIONS  (see  Charge). 

INSURANCE  COMPANIES  — 

u-  of  suits  against,  248. 
service  of  citation  on.  2s  l. 
notice  by  publication,  302. 

INTEREST— 

pi vsiunption  as  to  rate  in  other  states  and  countries,  487. 
in  judgments. 

1NTK II  LnrrTORY  JUDGMENTS  — 
in  general,  (p.i. 

INTERPLEADER  — 

tliinl  party  n-ijuin-d  to  intt-rplead.  203. 

may  insist  ..n  privilege  as  to  venue,  217. 

INTERPRETERS— 

to  inti-rpict  witnesses,  375. 

[NTERVENTION— 

in  g.-iiiTal.  10. 

iutcrv.-ncr  must  give  security  for  costs,  852. 
int«-r\  rii.T  ilctiiicil;   who  may  intervene.  | 
il.-i'i'ii-lant  may  rc«  .','itv  j>arty  in  interest  to  intervene,  2C3. 
notice  of  interrenttoa;  leave  of  court. 
ri^lit  of  plaintitT  t->  ilisiniss.  -Ju.y 
it-  aii'l  duties  of  interveiier.  'JOS. 
uf  intervention, ','117. 


7-iS  INDEX. 

INTERVENTION  (continued)  — 

owner  of  note  may  intervene  in  a  suit  brought  by  another,  208. 

assignee  of  a  chose  in  action  pendent e  lite  may  intervene,  209. 

the  owner  of  personal  property  may  intervene  in  a  suit  respecting  it  brought 

bv  another.  210. 

rig.'its  of  purchaser  pendente  lite,  211. 
in  actions  affecting  title  to  property,  212. 
in  trespass  to  try  title;  owner  of  land  may  intervene  in  a  suit  against  his 

tenant.  213. 

rights  of  lienholders,  214. 

where  property  is  seized  under  attachment,  execution,  etc.,  215. 
rights  of  attaching  creditors,  216. 

INTRODUCTION  OF  EVIDENCE  -* 
where  the  trial  is  by  the  court,  451. 
order  of.  473. 

time  and  order  of  introducing  evidence.  516. 
omissi'Mi  in  testimony  may  be  supplied,  517. 
exceptions  to  admission  or  exclusion  of  evidence,  518. 
examination  of  witnesses,  519. 
leading  questions,  520. 
cross-examination.  521, 
discrediting  or  impeaching  witnesses,  522- 
general  rules  as  to  impeachment  of  witnesses,  523. 
impeachment  by  proof  of  reputation,  524. 
impeachment  by  proof  of  contradictory  statements,  523. 
impeachment  by  reference  to  former  testimony,  526. 
testimony  admitted  for  specific  purpose,  527. 
evidence  improperly  admitted  may  be  withdrawn,  528. 
amount  of  cumulative  evidence  may  be  limited,  529, 
placing  witnesses  under  the  rule,  530, 

ISSUES  OF  LAW  — 
when  tried,  443-447, 

J. 

JOINDER  OF  CAUSES  — 
in  general,  8.  359. 

general  principles  as  to  joinder  of  causes,  360. 
illustrations  of  the  various  rulings,  361. 
chancery  and  common-law  rules,  362. 
real  actions,  363, 
tort  actions,  364. 

ioinder  of  causes  ex  delicto  and  ex  contractu,  365. 

whether  parties  must  all  be  interested  cr  affected  in  the  same  way,  366. 
effect  of  nonjoinder,  367. 

JOINDER  OF  PARTIES  — 

objections  for  non-joinder  or  misjoinder,  p.  223. 

JOINT  OBLIGORS  — 

suits  against  survivor,  159, 

JOINT  OWNERS  — 

joinder  in  suits,  151,  152,  173. 

JUDGES  (see  Disqualification  of  Judges)  — 
liability  for  judicial  acts,  58, 
powers  in  vacation.  59. 
failure  to  attend,  407. 
disqualification,  38-51. 

JUDGES  OF  DISTRICT  COURTC  (see  Judges)  — 
may  exchange  districts.  7,  43. 
powers  of,  in  term  time  or  in  vacation,  56, 

JUDGMENT  BY  DEFAULT  (see  Default)  — 
in  general.  13. 

JUDGMENT  LIENS  — 
in  general,  31, 


INK  74'J 

•MEXTS  (see  Cnllntwl  Attnck)  — 

.•li.  :;'.».  | 

of  t!i<-  supreme  court.  :'!" 

must  be  ba«H'il  on  i»-iii-  made  and  proved,  83. 
must  be  pronounced  at  a  terra  of  court,  "it. 

lateral  attack.  TO.  6-H. 
court  must  have  jurisdiction.  <>">.  72,  73. 

•is(  non-residents,  71.  ',".M,  :•!•.'. 
p:irti--s  to  §Ctn    fin-inn  to  revive.  169,  178. 
parties  tn  -nil  -  dde  and  enjoin,  170. 

vemie  of  suit*  to  onjoin.  238. 
venue  of  actions  mi.  or  to  revive  or  vacate,  239. 
in  suit*  airainst  p  •  -;  ncrship- 

i  without  service  of  process,  299. 
effect  nt  vnid  proc.-ss.  :;uu. 
determining  ttatu*  of  citizens  of  a  state,  303. 

'••MI*  of  the  state  on  citation  by  publication,  306. 
pi. •.sumptions  in  aid  of,  on  citation  by  publication,  313. 

;n>t  a  dead  person,  338. 
on  cost  bond,  349. 

on  case  s  ilmntted,  when  rendered,  453,  623. 
in  evidence.  491. 
of  the  entry  of  judgment,  617. 
names  ,,f  parties  must  be  stated,  618. 

>inty  required  in  judgment  entry,  619. 
inii-t  ("Hi form  to  the  case  made,  620. 
iiui-*t  be  based  on  the  verdict,  621. 
•  .f  tin-  relief  granted,  622. 
when  judgment  rendered  in  certain  cases,  623. 
recitals  in  judgments.  (524. 
entry  HHIK*  pm  tnnt\  (>'2~>. 
judgment  by  consent,  ''rjt',. 

ss  in  judgment,  ('>J7. 
may  include  interest,  628. 
may  be  for  or  against  one  or  more  parties,  629. 
description  of  land,  630. 
only  one  final  judgment.  631. 
may  pass  title  to  property.  632. 

enforcement  of  judgment;  judgmentfor  delivery  of  personal  property,  033. 
foreclosure  of  liens.  >>'•'>  I. 
writ  of  possession  awarded,  635. 

judgments  on  appeal  from  county  or  justices-'  courts,  636. 
judgments  against  executors,  etc.,  637. 
tinal  judgments,  638. 
interlocutory  judgments,  639. 

.mptions  in  aid  of  judgments,  640. 
validity  of  judgments;  collateral  attack,  641. 
orders  of  court 
court  loses  control  over  at  end  of  term,  666,  667,  695. 

'(tit in-  and  amendment,  690-696. 
trial  court  lias  control  over  to  end  of  term,  though  an  appeal  ia  perfected 

during  the  term.  695,  n.  4. 
lost,  how  substituted,  765. 

J  r  1  M  .  .M  KNTS  BY  CONFESSION  (sec  Confession  of  Judgment). 

.JUM'-IAL  DISTRICTS  — 

of  the  legislature,  4,  35. 
judicial  districts,  5. 

JCDK  IAL  POWER  — 

how  vested.  1,34 

JUDICIAL  RECORDS  — 
in  •  (91. 

of  other  states,  497. 
probate  records,  493. 

JUDICIAL  SALES  — 

setting  aside,  necessary  parties,  167. 
venue  of  suits  to  set  aside,  239. 


7  .">',)  INDEX. 

JURISDICTION  — 
in  general.  65. 

of  justices'  courts,  2;  p.  18,  n.  1. 
conflicting  provisions  of  the  constitution,  p.  18,  n.  2. 
no  distinction  between  law  and  equity.  8. 
how  acquired,  13. 
at  law  and  in  equity,  66. 
power  of  the  legislature,  67. 
concurrent,  68. 

courts  of  general,  and  of  special  and  limited,  jurisdiction,  69. 
collateral  attack,  69,  70,  313. 
by  consent.  71. 
over  the  subject-matter,  72. 
over  incidental  questions,  p.  80,  n.  8. 
over  the  person,  how  acquired,  73. 
over  non-residents,  74,  312,  313. 
extra-territorial,  75. 
in  local  and  transitory  actions,  76,  77. 
fraud  on  the  jurisdiction,  78. 
under  various  statutes,  105. 
amount  in  controversy.  107-110. 
to  set  aside  a  judgment,  117. 
to  cancel  a  deed,  117. 

where  a  river  or  a  road  is  a  county  boundary,  249. 
presumptions  in  aid  of,  313. 

JURISDICTION  OF  COUNTY  COURT  — 
in  general,  3,  65,  104. 

may  be  increased  or  diminished,  104,  and  notes;  120. 
amount  in  controversy,  107-110. 
to  issue  writs,  118. 

JURISDICTION  OF  COURTS  OF  CIVIL  APPEALS  — 
in  general.  5,  93-95. 

JURISDICTION  OF  THE  DISTRICT  COURT  — 
original,  appellate  and  supervisory,  4;  p.  114 
general  principles  in  respect  to,  lOo. 
amount  in  controversy,  107-110. 
to  issue  writs,  118. 

JURISDICTION  OF  SUPREME  COURT  — 
in  general,  6, 79-87. 

JURORS  (see  Challenge  of  Jurors;  Jury)  — 
how  selected  and  summoned,  p.  140. 
challenge  for  cause,  p.  142,  notes, 
qualifications,  121,  122. 
who  exempt  from  service,  123. 
excused:  fined  for  non-attendance,  137,  and  n.  1. 
to  be  summoned  for  a  day  to  be  designated,  443. 

JURY  (see  Deliberations  of  the  Jury)  — 
when  demanded,  19,  33,  458. 
challenge  to  the  array,  19,  33,  463. 
to  be  sworn;  number  required  to  compose  a  jury,  19. 
deliberations;  returning  the  verdict,  26;  ch.  36,  p.  559. 
how  impaneled,  33. 
for  the  week,  how  made  up,  138. 
in  trying  plea  of  personal  privilege,  252. 
must  be  demanded,  451,  457. 
right  of  trial  by  jury,  454. 
jury  trial  in  default  cases,  455. 
trial  by  jury  in  probate  matters,  456. 
must  be  demanded  and  fee  paid,  457. 
call  of  dockets,  458. 

deposit  of  jury  fee;  affidavit  of  inability,  459. 
entry  of  suit  on  jury  docket,  460. 
jury  trial  day  to  be  fixed  by  order,  4il. 
withdrawal  of  application  for  jury,  642. 


INDEX.  751 

V  (  ontinued)  — 
drawing  a  jury.  464. 
challenge  tor  cause;  procedure.  43.1. 

peremptory  challenges,  wh.-n  made:  procedure;  calling  the  jury,  460. 
inptory  challenges  defined;  number  of ;  when  made,  467. 
ui'ls  of  challenge,  468. 
challenges  to  be  decided  promptly,  469. 
swearing  the  jury.  470. 
number  required  to  compose  a  jury.  471. 
number  required  to  render  a  verdict,  472. 
may  take  charge  with  them  on  retiring,  and  may  ask  further  instructions, 

561. 

discharged  in  case  of  disagreement,  592. 
discharge.!  in  case  of  sickness,  etc.,  593. 
discharged  l»y  final  adjournment,  594 
case  to  be  tried  again  in  case  of  discharge  of  jury,  595. 
returning  the  verdict,  597. 
verdict  to  be  in  writing  and  signed,  598. 
receiving  the  verdict;  disagreement,  599. 
polling  the  jury.  600. 
verdict  informal  or  defective,  or  not  responsive  to  the  issues,  601. 

JURY  COMMISSIONERS  — 
their  qualifications.  134. 
oath  of.  126,  127. 

notice  to  and  attendance  of,  125. 
procedure  where  none  are  appointed,  128. 
sessions  of;  duty  of  clerks,  129. 

JURY  FEE  — 

must  be  paid.  457,  459. 
affidavit  of  inability,  4">9. 

JUSTICES  OF  THE  PEACE  — 

jurisdiction;  may  issue  writs  of  attachment,  etc.,  2,  104, 
appeal  to  county  court,  120. 


LANDLORD  AND  TENANT  — 

right  of  action  for  trespass  on  land,  187,  189. 

landlord  may  be  made  a  party  in  trespass  to  try  title  against  tenant.  213. 

LAND  TITLES  — 

when  judgment  may  pass  title,  632. 

jurisdiction  of  suits  concerning,  103,  104,  111. 

necessary  parties  to  suits,  177. 

actions  against  non-resident  or  unknown  owners,  184,  812. 

right  of  intervention,  212,  ~M:i. 

power  of  a  state  to  settle.  812.  632. 

record  of  certain  titles  confirmed,  512. 

joinder  of  causes  of  action,  868. 

certain  transfers  or  deeds  not  to  be  withdrawn  from  land  office,  495. 

certain  titles  not  evidence,  unless,  etc.,  511. 

venue  of  suits  concerning,  285. 

LAWS— 

how  proved,  486. 

LIENS— 

jurisdiction  to  enforce,  103,  104,  109,  112. 
Tien-holders  as  parties  to  suits,  178. 
venue  of  suits  to  foreclose.  283. 
foreclosure,  form  of  judgment,  634. 
writ  of  possession  on  foreclosure,  6U5. 

LIMITATIONS  - 

wh.-n  suit  deemed  comment 

I  of  suit  on  death  of  plaintiff,  838. 


LOCAL  AND  TRANSITORY  ACTIONS  — 

jurisdiction,  76,  77. 
venue.  217. 

LOST  INSTRUMENTS,  SUPPLYING  — 
in  general,  ch.  53.  p.  718. 
venue  of  suit,  219. 
depositions.  387. 
recorded  instrument,  copy  admissible  in  evidence,  506. 

LUNATIC  - 

guardian  ad  litem  for,  193. 

M. 

MALICIOUS  PROSECUTION  — 
venue  of  actions,  229. 

MANDAMUS  — 

courts  and  judges  may  issue,  56,  57,  118. 
may  issue  in  vacation,  59. 

when  returnable,  59. 
for  relief  of  a  member  of  a  society,  72. 
jurisdiction  of  supreme  court.  91,  92. 
to  compel  a  judge  of  the  district  court  to  proceed  to  trial,  91,  98. 

or  a  county  judge,  98. 
against  heads  of  departments,  92. 

venue,  242. 

power  of  courts  of  civil  appeals,  98. 
necessary  parties,  175. 
to  compel  entry  of  judgment,  617. 

MANDATE  — 

issues  on  payment  of  costs,  742. 

MARRIAGE  — 

of  female  plaintiff  or  defendant,  321,  322. 

MARRIED  WOMEN  — 

venue  of  suits  against,  221. 

acceptance  of  service  of  process,  p.  312,  n.  3. 

MEASURE  OF  DAMAGES  — 
charge  of  court,  577. 

MECHANICS'  LIENS  — 
parties  to  suits  on,  181. 
right  of  intervention,  212,  214. 
venue  of  suits,  246. 

MINORS  — 

as  parties  to  actions,  p.  155,  n.  10;  189. 

appointment  of  a  guardian  ad  litem,  193. 

may  sue  by  next  friend,  194. 

venue  of  proceeding  to  remove  disabilities^  219. 

service  of  process  on,  p.  298,  n.  3. 

agreement  to  arbitrate,  746.  note. 

MINUTES  OF  COURT  — 

must  be  read;  must  contain  what,  64 
MISTAKE  — 

in  return  of  citation,  293. 

in  judgments,  may  be  amended,  693-696. 
MONTH  — 

defined,  772. 

MORTGAGES  — 

mortgagee  a  necessary  party  to  a  suit,  when,  178,  196. 
parties  to  suits  to  foreclose,  179. 
venue  of  suits  to  foreclose,  233. 
form  of  judgment  foreclosing,  634 


ISP! 


MOTIONS  — 

wh.-n  h.-ard  and  determined,  18,  446. 

ned,  7'  I1.  i. 
motion  docket:  filing  motions,  710. 

•-M-.1    (.(".    \vll.-ll. 

notice  of,  711. 

to  supply  lost  pajwrs,  761,  762. 

MOTIONS   AGAINST  oFFlCKKS  — 
jurisilictiun  of  i-nnity  court,  o,  116. 

of  the  .li-^trict  court,  4,  116. 
venue.  'Jl!  i. 
notice  of,  711. 


NAMES  — 

of  parti.  -s.  inu-t  !..->  -tated  in  citation,  269,270. 

must  »*•  in.lfx.-.l.  i 

must  be  stated  in  judgment,  618. 

NEGLIGENCE— 

charge  of  court,  57  1. 

NEWLY-DISCOVERED  EVIDENCE  — 
as  a  ground  for  new  trial.  076. 

NEWSPAPER— 

notice  by  publication,  303-905. 

NEW  TRIAL  (see  Bill  fora  ATetc  Trial)  — 
in  general,  ch.  4:i.  p.  «J21. 
general  principl.-s.  27. 
where  the  citation  is  by  publication,  27,  689. 

tit  of  interested  thira  party,  195. 
in  case  of  judgment  by  default,  441. 
granted  on  motion;  grounds  to  be  specified,  663. 
will  be  granted,  when,  664. 
judgment  may  be  arrested,  when,  665. 
time  of  making  motion,  666. 
to  be  determined  during  the  term,  667. 
not  more  than  two  new  trials,  except,  etc.,  668. 
necessity  of  motion  for,  669. 
reference  to  alleged  errors,  670. 
where  the  trial  is  by  the  court,  671. 
amendment  of  pleadings,  67','. 
effect  of  order  granting,  673. 
counter-affidavits,  674. 
various  grounds  of  motion  for,  675. 
newly-discovered  evidence,  676. 
surprise  may  be  ground  for,  677. 
absent  testimony   • 

absence  of  a  party  or  his  counsel,  679. 
error  in  the  charge  of  the  court,  680. 
testimony  illegally  admitted  or  excluded,  681. 
verdict  not  supported  by  evidence,  68£ 

:ii-t  contrary  to  the  evidence,  683, 
verdict  contrary  to  law,  684. 
excessive  or  inadequate  damages,  689. 
granted  after  close  of  term,  686-489. 
costs  of  suit,  721. 

NEXT  FKIKND  — 

minor  may  sue  or  appeal  by,  193,  194 
t  give  security  for  costs,  848. 

NIL  DIC1T  — 

judgment  by,  438. 

NON  EST  FACTUM,  PLEA  OF  — 

to  instrument  sued  on,  482. 
must  be  sworn  to,  482L 


:  al  INDEX. 

NON-RESIDENTS  — 

jurisdiction  over,  74,  312. 

actions  against,  to  quiet  title,  184. 

venue  of  s  lits  against,  223. 

service  of  notice  on;  effect  of  judgment,  291. 

notice  by  publication,  302,  303. 

state  may  determine  status  of  citizens  as  against,  305,  312. 

validity  of  judgments  against,  312. 

NONSUIT  — 

when  taken,  25,  614. 

where  a  counter-claim  is  filed,  330,  614. 

right  of  plaintiff  to  take,  613. 

may  be  set  aside,  615. 

effect,  where  cause  is  reinstated,  616. 

XOX  SUM  INFORMATUS  — 
judgment  by  default,  438. 

NOTARIAL  ACTS  — 
in  evidence,  496. 

NOTARIES  PUBLIC  — 

may  take  depositions,  333. 
may  administer  oaths,  etc.,  775. 

NOTICE  — 

of  intervention,  204 

to  absent  or  non-resident  defendants;  effect  of  judgment,  291. 

of  taking  depositions,  378,  379,  394. 

to  produce  papers,  398-402. 

of  the  hearing  before  an  auditor,  702. 

form  of  notice.  707. 

service,  708. 

of  motions,  711. 

of  trial  by  arbitrators,  749. 

NUISANCES  — 

who  may  sue,  189. 

NUNC  PRO  TUNG  ENTRIES  — 
of  judgments,  625. 

o. 

OATH  (see  Affidavits)  — 
of  jurors.  470. 
how  administered,  480. 
of  arbitrators,  749. 
form;  who  may  administer,  773,  775. 

OBJECTIONS  (see  Exceptions)  — 

to  citation,  service  and  return,  300. 

to  discontinuance,  329. 

to  change  of  venue,  346. 

to  depositions,  390,  391,  397. 

to  improper  argument,  546,  547. 

for  defect  of  parties,  197-203. 

OFFICE  — 

trial  of  right  to,  jurisdiction,  114. 

OFFICERS  — 

motions  against,  jurisdiction,  117. 
defalcation;  venue  of  suits,  228. 
authorized  to  take  depositions,  383. 
not  to  act  as  surety,  658. 

OFFICIAL  BONDS  — 

parties  to  suits  on,  164,  165. 

OPENING  AND  CLOSING  — 
rule  stated,  20,  474-476. 


: — 

ORDERS  - 

may  !*•  <»-t  aside;  litigants  must  take  notice  of. 


P. 

I'Airnr.s  -m   \CTIM\X   K6  7fifer«**ffcH»)— 

in  iT'-in-ral.  1»>:  and  sr.-  ch.  ?.  p.  151. 

~>ary  and  proper  pnrtii--. 
i  party  in  interest.  141. 

•  I  lieji.-riciary.  140. 

mother.  '. 

i  liy  one  t'< .r  i.ene lit  of  liini-flf  and  others,  144. 
join-lfi-  df  jilaiiititFs  (ir  lU-tVivlants  having  distiuct  interests,  150. 

l.")l. 

join.l.-r  ot  -».-v.-ral  Mlili^'ors.  l.VJ. 
parties  conditionally  lialilf.  153. 
additional  ]>arti-^.  l!»'i. 

,  various  actions,  sec  14. "5-1 96. 
ulij.-.-ti..ii-  )'..r  defect  "t'  parti.--,  p.  •,'-,'::. 
a»s  .auk ruiitcy,  209,  and  notes. 

|>ai; 

in  partition, 
may  t-'-tit'y.  177. 

PARTITION  — 

parti.-  to  <uits  for.  185. 

vcniif  (.1  -nil  - 

citation  l>y  publication,  305. 

abatement  of  suit. 

proceedings  and  decrees  in  evidence,  504. 

PARTNERS  — 

actions  hy  ami  against  survivors,  159,  163. 

linst.  It;.',  286. 
tement  of  names  in  citation.  269. 

"f  citation  on  one,  2>»;. 
dismissal  as  to  one,  >'M,  and  notes, 
agreement  to  arbitrate,  74(i,  note. 

PARTNERSHIP  — 

•  ation  on.  . 
limit. -.1:  attidavit  of  puljlication  in  evidence,  515. 

PAUPER  OATH— 

in  general.  :!50. 

PENALTIES    \ND  FORFEITURES  — 

jurisdiction,  in::. 

I'KIMT.l.'TI'ATFNi;   TKSTI  MI  >N  V  — 
PERSONAL  .\TTKND\XCK  OF  WITNESSES  — 

.    ''I!.     1S.     | 

I.  !'i;«)i'Ki;TY  — 
o\\  .         n.- in -nits  concerning,  210. 

Vi-IIUi-  of  suits  to   I'.- 

HI  of  vain.-  liy  jury,  til  1. 
jud  _  .    033. 

i  rmx  _ 

tiling  an  1  do--l. 

Cop 


7'»(!  INDEX. 

PLEADINGS  — 

pk>as  and  exceptions,  when  determined,  18,  443-447. 
preparing  and  filing  petition,  33. 
defensive  pleading  a  waiver  of  process,  296. 
synopsis  may  be  made  up  and  read  before  trial,  449. 
costs,  730. 

PLEA  IN  ABATEMENT  — 

for  non-joinder  or  misjoinder  of  parties,  197,  198. 

PLEA  OF  PRIVILEGE  — 

as  to  venue,  may  be  waived,  252. 

POSTPONEMENT  (see  Continuance)  — 
to  a  future  day  of  the  term,  412. 

PRACTICE  — 

general  principles,  8. 

how  to  conduct  a  lawsuit,  33. 

objections  for  defect  of  parties,  197-201. 

notice  to  produce  papers,  398-402. 

directing  a  verdict,  583. 

taking  cases  under  advisement,  623. 

remarks  by  the  judge  in  the  presence  of  the  jury,  655. 

stenographer,  656. 

leading  counsel;  attorney  of  record.  657. 

attorney  or  officer  not  to  act  as  surety,  658. 

deposit  in  court,  659. 

personal  examination  of  injured  party,  660. 

suits  on  contracts  with  or  for  a  county,  661. 

city  not  required  to  give  bond  or  security,  662. 

on  "bill  for  a  new  trial,  688. 

on  trial  before  an  auditor,  703,  704. 

before  arbitrators,  749,  750. 

PRAYER  — 

for  citation,  whether  necessary,  263,  note, 
practice  as  to  the  relief  granted,  622. 

PREMATURE  ACTIONS  — 
costs,  725. 

PREPARATION  FOR  TRIAL  — 

duty  of  the  parties  to  be  ready  for  trial,  17,  33. 
diligence  in  order  to  procure  a  continuance,  416,  421. 

PREPONDERANCE  OF  EVIDENCE  — 
charge  of  court,  567. 

PRESUMPTIONS  — 

in  favor  of  return  of  process,  309. 

in  aid  of  judgment  on  service  by  publication,  313. 

in  aid  of  judgments,  generally,  640. 

PRINCIPAL  OBLIGOR  - 
discontinuance  as  to,  329. 

PRIVILEGE  OF  WITNESS  — 
to  refuse  to  answer,  372. 
from  arrest,  372. 

PROBATE  RECORDS  — 
in  evidence,  492,  493. 

PROCEDENDO  — 

jurisdiction  of  supreme  court,  91. 

PROCEEDINGS  IN  REM  — 
action  to  divest  title,  291. 
judgments  against  non-residents,  312. 

PROCESS  (see  Citation;  Writs)  — 
duties  of  parties  respecting,  33. 
requisites  of  writs  and  process,  62. 
when  returnable.  62. 
from  the  supreme  court,  91. 


INI 

PROl  :•  -inued)  — 

fri)in  courts  of  civil  ap-  . 

me  "ii  Sun.  lays  or  holidays,  except,  258.      f 

\vli.  ii  r.-turnable.  . 

•iv.-.  300, 
re.jui-ites  «if  citation  by  publication,  :j<JJ,  :J04. 

PRODUCTION  "F  I'M'ERS  — 
no:  r.^-to-,1. 

PROHIBITION— 

jurisdiction  uf  district  mart,  119. 

1'L'HLK  ATIOX  (see  Citation  by  Publication)  — 

.atioll.   dl.    13,    ] 

I'CHI.ir  KKi'ORDS  — 
in  fvi.lfiic*-.  490-514 

;h«-r  >tat.->.  ln>\\-  proved,  498. 
H  \>r.KS  I'KNDF.NTK  LITE  — 
as  partu-s  t<»  suits,  183;  p.  2'-il,  11.  i. 
may  intervene,  211. 

Q. 

3HTNO— 

citation:  effect  of  motion,  297. 

'.-riF-TIXii  TITLE  — 

•as  against  non-resident  or  transient  persona,  184. 

citation  oy  publication,  305. 

\V\RRAXTO  — 

••ilings  in  vacation,  59. 
jurisdiction  of  supreme  court,  91,  92. 

of  district  and  county  courts,  118. 
additional  parties,  195. 
v.-nut-.  -,'r.i.  •-'»:;. 

commenced,  253, 


R. 

KAII.R" AD  COMMISSION'  — 

•  rati-s.  rules,  etc..  admissible  in  evidence,  515. 

KAII.!:n\l)  cnMI'ANIKS- 

p,u  is  on  time  checks,  150,  181. 

v.'i  •  -  against.  U'l'.».  245. 

vi-mif  of  -nits  to  forfeit  la- 

l.y  ni.-clianics  ainl  latiorera,  246. 
!  citation. 

I'-ni'-iit  of  suits  against.  335, 

IVKHS- 

i»-  ap|K,int<-d  in  vacation,  59. 
r  to  intervene.  2TJ. 

;:d  to  appoint.  2-11. 
service  of  citation  ..n. 
abatement  of  actions  on  discharge  of,  337. 

INVENTION  — 

\vhetl»er  plaintiff  may  take  a  nonsuit,  380. 

•  KhED   IN^TKM-MENTS  — 
in  e\i  i.-nc.-.  BMhfll 

>RD8- 

in  eviil.-nc.-.  J'.'n  ~,\ }. 

of  other  stat- •-.  lio\v  proved,  498. 


75  S  INDEX. 

REHEARING  — 

in  supreme  court,  30. 

RELEASE  OF  ERRORS  — 

liy  ri-inittitnr  or  amendment  of  judgment.  696. 

RELIEF  — 

what  relief  may  be  granted  by  the  court,  623. 
excess  in  judgment,  627. 

RELIGIOUS  BELIEF  — 

does  not  disqualify  as  a  witness,  480. 

L'F.MITTITUR  — 

may  be  entered  in  vacation,  59. 
excess  in  verdict  or  judgment,  690. 
in  vacation,  691. 
after  appeal,  692. 

REMOVAL  FROM  OFFICE  — 
jurisdiction,  115. 
venue,  219. 

KEPLEADER — 

when  ordered,  448. 

RES  ADJUDICATA  — 

splitting  causes  of  action,  367. 

RETAXING  COSTS.  736. 

RETURNING  THE  VERDICT  — 
in  general,  597-603. 

RETURN  OF  PROCESS  — 
when  returnable,  275. 

citation  must  be  returned  on  or  before  return  day,  279. 
requisites  of  return  of  citation,  287. 

return  not  served,  288,  289. 
mistake  in  return  of  citation,  293. 
void  or  defective,  300. 
false.  301. 
citation  by  publication,  309. 

RULES  OF  PRACTICE  - 
in  general,  8,  101. 
supreme  court  may  make  and  enforce,  101. 

S. 

SCIRE  FACIAS  — 

on  death  of  a  party,  316,  317,  334. 

SEAL  OF  COURT  — 
in  general,  63. 
process  must  be  under  seal,  62. 

including  citation,  272.  303,  304. 
on  notice  to  absent  or  non-resident  defendants,  291. 
amendment  of  citation'by  affixing,  292. 
not  required  on  subpoena,  368. 

SECURITY  FOR  COSTS  (see  Costs)  — 
in  general,  11,  33. 
clerk  may  require  security,  347. 
defendant  or  any<officer  may  require  security,  348. 
judgment  on  cost  bond,  349. 
affi.l.ivit  of  inability  to  give  security,  350. 
security  not  required,  when,  351. 

intervener  and  defendant  may  be  required  to  give  security,  352. 
costs  secured  by  other  bonds,  353. 
matters  of  practice,  354. 
suit  may  be  dismissed  for  non-compliance  with  rule  for  costs,  355. 

SEPARATE  PROPERTY - 

parties  to  suits  concerning,  154,  155. 


IN  I)  I 


\ll ATIOX  OF  JURY,  388. 

•:- 
jtutioea 

jurisdiction, 

ritfht  of  int.  i  -id  notes. 

M^ful.  v.-Mii''  nf  suit  for. 
commenced  on  Sir  i  holidays,  258. 

OF  CITATION  — 
iiKlors.-in.-tit.  t-x.-ciiti«iii  and  return,  27'J. 

290. 

u-itliin  tli"  r-, unity 

ea>  nit  must  be  served,  960^  887. 

_:lili>t  i-i'iiiili,  [ 

or  on  incorporated  comjianies  or  receivers,  283. 

n  insurant*'  companies,  384 
or  on  for  285. 

or  dii  a  firm.  . 

inu-t  U-  serve  1  t.  ii   I  !\-s  before  return  day,  290. 
irn  day.  vnM. 

absent  or  non-resident  defendants,  291. 
•••ptani-i-  or  \v;i 

•W. 

v  tin-  ot;'.  .  280. 

tinit-  of  i>ul)li<-atii>M  of  citation,  307. 

VICE  <>r  N.  .TIC'E- 
ni  Kfii'-i'al,  ; 

SHERIFF— 

duty  in  siniiinoniii.^  jurors,  13* 

niu-t  !>••  -\v..i  •. 
service  of  citation 

\vii.-n  a  party  to  the  suit 

hv  d.-piir. 

duty  as  to  imlorsoment  and  return,  279. 

irn.  301. 
dutir>  in  ^ivin^  notice  l»y  publication. 

'ipn-na  in  taking  d«-[M)sition.  ;W4. 
ilutii-s  wlion  having  a  jury  in  cluirge, 

SIDK  l:\l:  KKMAUKS  — 
prohihiti-'l.  I  I''-. 

fDER  — 

jurisdiction,  lu!.  ;ii |. 
-nit.  ?1'J. 

-  — 
how  sul.iiiittt-  : 

I  A  I.  .It 'I"      -  <nofjudges)~ 

•intnidit  or  .-Ifction  of.  41,  4'J,  1 1. 
r  i|iialitication- 

">1. 

u'l'oKM  \NCK- 
:  ??. 

SIM.ITTIV  -FACTION  — 

H  — 

•  o  give  security  for  cost^. 

STA  i 

may  be  1  n.  .V.t. 

w),.  i  to  th-  j 


7''><t  INDEX. 

STATEMENT  OF  FACTS  (continued)  — 

in  place  of  bill  of  exceptions,  534.  ^. 

where  the  trial  is  by  the  court,  604. 
when  and  how  prepared,  648. 
what  included  in,  649. 
when  the  parties  disagree,  650. 
made  up  and  filed  in  vacation,  when,  651. 
statement  not  filed  in  time  may  be  considered,  652. 

procedure  in  court  of  civil  appeals  where  statement  of  facts  is  found  insuf- 
ficient, 653. 
presumptions  and  rulings  in  absence  of,  654 

STATEMENT  OF  THE  EVIDENCE  — 
on  citation  by  publication,  310,  311. 

STATUTE  BOOKS  — 
in  evidence,  486. 

STENOGRAPHER  — 
appointment  of,  656. 

STYLE  OF  PROCESS  — 
generally,  274. 
of  citation,  265.  303,  304. 
of  subpoena,  368. 
commission  to  take  depositions,  88?. 

SUBPCENA  DUCES  TECUM  — 
when  issued,  376. 

SUBPCENAS  — 

need  not  be  under  ser.l,  62. 

form  and  service  of,  368. 

for  witnesses  before  arbitrators,  749. 

SUBSEQUENT  PURCHASERS  — 

as  parties  to  suits,  182. 
right  to  intervene,  213. 

SUBSTITUTION  OF  LOST  RECORDS  AND  PAPERS  — 
supplied  on  motion.  761. 
requisites  of  motion,  762. 
procedure;  admission  and  proof  of  correctness  of  copy;  right  of  adverse 

party,  763. 

substitution  by  consent  of  parties,  784 
lost  judgments  supplied,  765. 

SUITS  - 

how  instituted,  ch.  11,  p.  283. 

not  to  be  commenced  on  Sunday  or  on  a  holiday,  258. 
contract  limiting  time  for  commencing,  261. 
or  as  to  notice  of  claim  for  damages,  262. 
deemed  commenced,  when,  253. 

SUNDAY  — 

no  legal  proceedings  on,  except,  11,  12,  258. 
counted  in  serving  citation,  290. 
included  in  computing  time,  768. 

SUPERSEDEAS  — 

may  issue  in  vacation,  59. 

SUPERVISORY  JURISDICTION  — 
of  district  court,  119. 
of  county  court,  120. 

SUPREME  COURT  — 

organization  and  jurisdiction;  quorum,  6,97. 

trial  of  cases  in,  30. 

appellate  jurisdiction,  79-87. 

power  to  i  sue  writs,  91. 

may  ascertain  its  jurisdiction  on  affidavit,  etc.,  92. 

sessions.  99. 

may  make  and  enforce  rules  of  procedure,  101. 


7'  i 


SURETIES  — 

H-  parties  to  actions,  p.  n:t.  n.  !»:   1  Vj.  I.K!,  lO'j,  104-160. 
attorney  or  utliccr  not  to  act  as,  658. 

SURPRISE  — 

as  a  groun.1  for  continuance,  408,  409. 
as  a  ground  tor  new  trial.  HT?. 

srKVlVnlt  A XI  i  REPRESENTATIVE  — 
suits  against.  l.V.i. 

in  pnx-eeding  to  revive  a  joint  judgment,  169. 
abatement  of  actions,  311). 

T. 

TAXI 

-MI icnt  and  payment,  how  proved,  501, 

TELEGRAPH  COMPANIES - 

who  may  sue  for  damages,  I?','. 

TENANT.-  ix  COMMON  — 

as  parties  to  suits,  113. 

TENDER  — 

costs  in  case  of,  724. 

TERMS  OF  COURT  - 
of  county  courts,  3,  ">. 

of  district  courts  I,  '>'•>. 

:.il  t.  rms  ..I  district   court,  '>'•',.  ~>\. 
jii.l^niriits  must  be  pronounced  at  a  lawful  term,  54. 

TESTE  — 

of  citation.  271,1.  :!0:',. 

of  subpoena,  368. 

of  commission  to  take  depositions. 

TIME  — 

rules  for  computation  of  time,  7615-??,?. 

TITLE  — 

may  be  passed  by  judgment,  *>'•'•-. 

TOR'I 

committed  beyond  the  limit*  of  tli«-  stato.  jurisdiction,  77, 

liability  of  master  and  servant,  p.  213,  n.  6. 

venue  of  actions,  •,'-'.». 

joinder  of  causes  of  action,  364,  365. 

TRANSIENT  PERSONS  — 

action-  a^aiiiNt,  to  quiet  title,  184. 

velllle   of  SUlts,  H'2. 

i-itati..n  l)v  publication.  :50:»,  305. 

TUANS1TORY  ACTIONS  — 
jnrixlic'tion,  76,  77. 

TRESPASS  — 

liability  of  joint  ti  .  186. 

on  lanil:  who  may  sue,  187. 
veini.-  of  suits,  •„"..".). 
tletlm-,1.  •,'•.".!. 

1K1>1'ASS  TO  TRY  TITLE  — 

necessary  parties.  1??. 

ripbt  of  intervention,  -Jll.  'Ji:{. 

B8& 

iliscuntinuanoe  by  one  plaintitT,  332. 
costs,  726. 

TRIAL— 

call  of  c-ises  for,  IN 

IN-U'-S  (,t  law  to  be  lir-t  •li-|>osed  of,  18. 
may  be  by  court  «r  jury.  1\ 
opening  tin.-  rase,  -,'u,  j.;,  i?.j. 


V1'*-  INDEX. 

TRIAL  (continued)  — 

B  to  l)i-  tried  when  called,  442. 
day  set  for  jury  docket;  demurrers,  etc.,  to  be  disposed  of;  summoning 

jurors.  443. 

call  of  non-jury  docket,  444. 

issues  of  law  and  dilatory  pleas,  when  disposed  of,  445. 
motions  and  exceptions  to  merits,  when  decided,  446. 

exceptions  undisposed  of  on  call  of  cise;  deemed  waived,  when;  costs,  447. 
trial  ami •niliiu-nt:  repleader;  no  trial  on  immaterial  issue,  448. 
synopsis  of  pleadings  may  be  made  up  and  read,  449. 
abandonment  of  part  of  cause  of  action,  450. 
directing  a  verdict,  TiS:!. 
order  of  proceedings,  473. 
right  to  open  and  close,  474-476. 

TRIAL  AMENDMENT— 
either  party  may  file,  448. 

TRIAL  BY  THE  COURT  — 
general  rules  govern,  451. 

agived  cas;'.  452. 

case  submitted  to  judge  to  be  decided  during  the  term.  453. 
bill  of  exceptions;  conclusions  of  law  and  fact,  542,  601. 
new  trial.  6T1. 

TRIAL  BY  JURY  (sea  Jury). 

TRIAL  OF  RIGHT  OF  PROPERTY  — 
jurisdiction.  103,  104,  113. 
proper  and  necessary  parties,  168. 
intervention,  215. 
ho\v  docketed,  254. 

TRUSTEES  — 

and  beneficiaries,  as  parties,  142. 

u. 

UMPIRE  — 

in  arbitration,  7.T3. 

UNKNOWN  HEIRS  — 

notice  by  publication,  304,  305,  307. 

U  NK  NOW  N  PERSONS  — 

actions  against  to  quiet  title,  184. 
venue  where  residence  is  unknown,  223. 
citation  by  publication,  305. 
appointment  of  attorney  for,  310. 

Y. 

\TION  — 
proceedings  in,  59. 
discontinuance  in,  328. 
iil ing  statement  of  facts,  651. 
entry  of  remittitur,  691. 

VARIANCE  — 

of  citation  from  petition,  292. 

VENDOR  AND  VENDEE  — 

parties  to  suits  between,  177.  195. 
as  to  venue  of  actions,  235,  236. 

VENDOR'S  L1EN- 

parties  to  suits  to  foreclose,  180. 

VENUE  OF  ACTIONS  (see  Change  of  Venue)  — 
in  general,  9;  ch.  10,  p.  243. 
plea  of  personal  privilege,  p.  81,  n.  6. 

where  one  is  brought  in  against  whom  defendant  claims  a  judgment,  195. 
objections  not  waived  by  motion  to  quash  citation,  297. 


vi-:  N  i)_ 

•J17. 

ill  Mill 

i  l>y  particular  law.  'Jl'.'. 

p.-w.-r  i>l'  (lie  leiri-latuiv  t«>  change  the  law.  0'2<i. 
iiy  inarrii  <1  women,  'J^l. 

•unit  tin-  state,  or  unknown.  . 
r-  8  lefeii.lants  in  tlilFeivnt  conr: 

perform.  M!  in  a  particular  r<-iii.t\ 
vah  lity  ol'  contract  as  to.  ','-1'.. 

.1  Irninistrators  or  guanli. 
fra>;  1  .lef:ilcatioii. 

ill   >  .inc.   otfiM.- 

wi,,  i;L:t'ul  atta<>linifiit  or  >i-t|iit—  trai  i«i 
suit-  f  p.-1-s..nal  propt-rtN 

riling  inlii-rit: 

partition, 

suit*  (•••n.  .  -rniii^  laml.  - 
•li  of  warranty  nl  I 
snit-  I'd!-  .li\ 
enjoining  juil^im-nts.  . 

ita  actimis  on.  ainl  to  revive  or  raoate,  239. 
pr»'c  '•  iin.Lrs  in  prohatr.  -Jl". 
suit  auain>t  a  c"iinty,  'J41. 

gainst  lit-ails  of  tit-  part  im-nts.  21'*. 


suit--  t"  fi'i-f.-it  railrna.l  laiiil«.  ','J4. 

suit-  against  private  corporation*,  inchi>liii£  rail  mail  ci.inpai. 

i-ailroail  conipanie.-. 

suit>-  a.L:ain>t  foreign  corporations.  'JIT. 
suit-  a.uainst  insuraiire  companies,  i 
wli-'ii  a  river  or  roa<l  is  a  county  hoiuulary. 

••le.-tii'll-..    'J-'lO. 

.•iction-  a-ain-t  ainl  to  appoint  receivers,  2r>l. 
plea  ol  p.T-onal  privilc^'i-  may  l«e  waiveil;  how  t 

VERDICT— 

ilchheration-,  of  tin-  jury.  'Jf,.  :',:!:  cli.  :iC..  p. 

may  l>e  ^.-neral  or  sp  -.-lal.  ','ii. 

numlx-i  ol  jurors  n-ijuiivil  to 

returiiin-.  .">!i;-Citll. 

t>.  !>••  in  wntini:  an.l  siyneil. 

inii-rmal  or 

'leral  venlict.  ' 

,1  vei-.lict  :   -p  -cial  i 
mu-t  co\--rall  tin-  i—  ue-:  rmiclu-  trial  I  >y  the  judge,  604. 

live  or  en.'iii-i.u-  liinlin^s  of  fact.  CU3. 
lorin  ..I  vei-.lict.  ' 

linty  reipiin-'i 
mu>t  r-  --ponil  to  the  i- 

lini-t   comprellellil  the   whole  issue,  609. 

tin  ':!>•_  ;  -  i"  i'.  in. 

v;u,  rty.  liow  asse-xcil.  1'ul. 

1  •  !  ','. 

jll'lmilellt    IIU1  li'Jl. 

to  law  <>r  t-vi.U-tire.  u  lien  j;roiin.l  fur  a  new  tria 
-!'l  h   EUOHT8— 

rali 

w. 

\\-  \ 

ol  i  -.inal  pri\  I 

ot  oi'i.  -ctioii  t  1  on  a  hoi 

-  .iiul  nmtioiis  not  called  to  the  attention  of  t  !».">.  U?. 


TC4  INDEX. 

WAIVER  OF  PROCESS  — 
in  general,  73,  294,  295. 
agreement  as  to  venue,  220. 
by  filing  defensive  pleading,  296. 

WARRANTY  OF  TITLE  — 
venue  of  suit  for  breach,  236. 

WEEK  — 

defined,  771. 

WILLS  — 

in  evidence,  493. 

WITNESS  FEES  — 
in  general,  729. 

payment  or  tender  at  time  of  summoning,  17,  369,  422. 
party  summoning  liable  for:  taxation,  371, 
per  diem  and  mileage,  369,  729. 

WITNESSES  (see  Examination  of  Witnesses)  — 
compelling  attendance  at  the  trial,  17. 
competency,  21,  477-480,  481. 
examination  of,  22,  519. 
may  be  put  under  the  rule,  22,  530. 
subpoenas  for  witnesses;  form  and  service,  368. 
attendance  of  witnesses,  how  enforced:  fees,  369, 
diligence  must  be  used  to  procure  attendance  of  witnesses,  370. 
party  summoning  witness  liable  for  his  fees;  taxation  of,  371. 
refusal  to  testify,  372. 
privileged  from  arrest,  373. 
parties  compelled  to  attend  and  testify,  374. 
interpreters,  375. 
subpoena  duees  teoum,  376. 
refusal  to  testify  in  taking  depositions,  384. 
diligence  in  procuring  attendance,  421. 
impeachment,  522-526. 
re-examined  on  request  of  jury,  390, 
before  arbitrators,  749. 

WRIT  OF  ASSISTANCE  — 
when  issued,  622, 

WRIT  OF  ERROR  — 

from  supreme  court  to  courts  of  civil  appeals,  30,  79. 

WRIT  OF  POSSESSION  — 
when  awarded,  6;35, 

WRITS  — 

powers  of  county  courts,  3,  57,  118, 

of  district  court,  4,  56,  118. 

of  courts  of  civil  appeals,  5.  98. 

of  the  supreme  court.  6,  91. 
may  be  issued  in  vacation,  59. 
general  requisites  of  writs  and  process,  63. 

WRONGFUL  ATTACHMENT  — 

necessary  parties,  188. 
venue  of  actions  for,  229,  230. 


RIGHTS 


BY  WM.  G.  MY5R,  Author  of  ••  Federal  Decisions." 

RETROSPECTIVE     AND     ARBITRARY     i,EGlSWATION, 
affecting   Vested    Rights  of  Property. 


OF    ]*EGIS1,ATIYE    POWER,  as  regards   Rights  in 
the  Nature  of  Property. 

CONSTITUTIONAL  GUARANTY  of  due  Process  of  law 
for  the  Deprivation  of  Property. 

THE  CHAPTER  ON  PRIVATE  CORPORATIONS  is  alone 
worth  the  price,  being  an  exhaustive  discussion  of  the  rights 
derived  by  Corporations  under  their  Charters. 


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r,. 


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in  turn  has  received  the  author's  careful  attention,  and  after  stating 
the  general  rules  and  the  law  applicable  to  them  under  their  several 
captions,  the  cases  bearing  upon  them  are  stated  at  the  bottom  of  the 
page.  The  work  has  a  thorough  index,  covering  fifty-seven  pages, 
and  the  table  of  cases  cited  contains  about  6,000  references. 
This  table  has  been  divided  into  two  parts  under  the  respective  head- 
ings of  cases  cited,  and  late  cases  died,  In  the  added  matter.— New 
Jersey  Law  Journal. 


E.  A.  HAWKINS.  JR, 

•.TTOXt^TET   .AT 

and   Notary  Pub. 
GALVESTON.     TEXAS 


